Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fontenot v. State

Court of Appeals of Texas, First District, Houston

May 31, 2018

Ecknozzio Okeith Fontenot
v.
The State of Texas

          185th District Court of Harris County, No. 1540146

          ORDER OF ABATEMENT

          TERRY JENNINGS JUDGE

         Without an agreed punishment recommendation, appellant, Ecknozzio Okeith Fontenot, pleaded guilty to the felony offense of aggravated robbery with a deadly weapon. The trial court found appellant guilty and assessed his punishment at confinement for eight years. Appellant timely filed a pro se notice of appeal.

         The Clerk of this Court has examined the clerk's record and has found that the certification of defendant's right to appeal, which states that "the defendant has waived the right of appeal, " may be defective. The record filed in this Court does not reflect either a bargained-for waiver of appellant's right of appeal or a waiver after appellant was sentenced. See Washington v. State, 363 S.W.3d 589, 589 (Tex. Crim. App. 2012); Ex parte Broadway, 301 S.W.3d 694, 697-99 (Tex. Crim. App. 2009); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).

         The Texas Rules of Appellate Procedure require us to dismiss an appeal unless the record contains a written certification showing that the appellant has the right of appeal. See Tex. R. App. P. 25.2(d). The rules also permit amendment of a defective certification and prohibit us from dismissing an appeal based on the lack of a valid certification. See id. 25.2(f), 44.4; see also Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

         Further, the clerk's record filed in this Court reflects that appointed counsel represented appellant in the trial court. And appointed counsel continued to represent appellant until March 19, 2018, when the trial court granted counsel's motion to withdraw. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (West Supp. 2016). The trial court, however, but did not appoint counsel to represent appellant on appeal.

         Accordingly, we abate the appeal, and remand the cause to the trial court for further proceedings. The trial court shall immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant shall be present. If appellant is incarcerated, at the trial court's discretion, he may participate in the hearing by closed-circuit video teleconferencing.[1]

We direct the trial court to:

1. determine whether appellant wishes to prosecute his appeal;

2. make a finding regarding whether or not appellant has the right of appeal and, if necessary, execute an amended certification of appellant's right to appeal;

3. determine whether appellant is now indigent;

4. if appellant is indigent, appoint appellate counsel at no expense to appellant;

5. if appellant is not indigent:

a. determine whether he has retained an attorney to file a brief and, if so, obtain the name, address, and telephone number of retained counsel;
b. if appellant has not retained counsel, admonish appellant of the dangers of self-representation, and i. determine whether appellant is knowingly and intelligently waiving his right to counsel, or ii. if appellant does not wish to proceed pro se, provide a deadline by which he must hire an attorney;

         6. make any other findings and recommendations the trial court deems appropriate; and

         7. enter written findings of fact, conclusions of law, and recommendations as appropriate, separate and apart from any docket sheet notations.

See id. art. 1.051(a), (c), (d)(1), (f), 26.04; Tex.R.App.P. 25.2(a)(2), (d), 34.5(c)(2); cf. Tex. Code Crim. Proc. Ann. art. 1.051(g).

         The trial court shall have a court reporter, or court recorder, record the hearing. The trial court clerk is directed to file a supplemental clerk's record containing any amended certification of appellant's right to appeal and any findings, recommendations, and orders of the trial court with this Court no later than 30 days from the date of this order. See Tex. R. App. P. 34.5(c)(2). The court reporter is directed to file the reporter's record of the hearing within 30 days of the date of this order. If the hearing is conducted by video teleconference, a certified recording of the hearing shall also be filed in this Court within 30 days of the date of this order.

         The appeal is abated, treated as a closed case, and removed from this Court's active docket. The court coordinator of the trial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.