Court of Appeals of Texas, First District, Houston
District Court of Fort Bend County Trial court case number:
ORDER OF ABATEMENT
V. KEYES JUDGE
pleaded guilty, without an agreed recommendation as to
punishment, to felony theft and money laundering. The trial
court found appellant guilty as charged and sentenced her to
28 years' imprisonment. The trial court's
certification of appellant's right to appeal states that
her case was a plea bargain with no right to appeal and that
she waived the right to appeal. Appellant timely filed a
notice of appeal to challenge her convictions on the basis
that her guilty pleas were neither knowing nor voluntary.
Rules of Appellate Procedure require this Court to dismiss an
appeal unless a certification showing that the appellant has
the right to appeal has been made part of the record.
See Tex. R. App. P. 25.2(a)(2). But they also
provide that an amended certification of the defendant's
right to appeal may be filed in the appellate court to
correct a defect or omission. See Tex. R. App. P.
25.2(f), 34.5(c), 37.1. A defective certification includes
one that is "correct in form but which, when compared
with the record before the court, proves to be
inaccurate." Jones v. State, 488 S.W.3d 801,
804 (Tex. Crim. App. 2016) (quoting Dears v. State,
154 S.W.3d 610, 614 (Tex. Crim. App. 2005)). A certification
that is contrary to the record before the appellate court is
therefore defective. Jones, 488 S.W.3d at 804-05. If
the trial court's certification is defective, the
appellate court must use Rules 37.1 and 34.5(c) to obtain a
correct certification. Dears, 154 S.W.3d at 614-15;
see Tex. R. App. P. 34.5(c), 37.1.
review of the record reveals that the trial court's
certification of appellant's right to appeal was
defective. Because her sentencing was not agreed upon,
appellant could not effectively waive her right to appeal
unless the State gave her consideration for that waiver.
See Carson v. State, 559 S.W.3d 489, 494-96 (Tex.
Crim. App. 2018) (holding that record must show that State
gave its consent to defendant's waiver of his right to
jury trial "in exchange for the defendant's waiver
of his appeal," and that defendant's waiver
"was made in exchange for consideration given by the
State and, thus, was voluntary, knowing and
intelligent"). There is no indication in appellant's
plea paperwork, elsewhere in the Clerk's Record, or
anywhere in the Reporter's Record that her waiver of her
right to appeal was bargained for in exchange for the
State's consent to her waiver of a jury trial.
See Tex. Code Crim. Proc. Ann. art. 1.13 (defendant
may not unilaterally waive right to jury trial; trial court
and State must consent). On the contrary, the record reflects
that the State's waiver of a jury trial was given in
consideration not for appellant's waiver of appeal, or as
part of an agreement that included that waiver, but
exclusively for her agreement to plead guilty to the two
felony offenses. Cf. Carter v. State, No.
01-18-00116-CR, 2019 WL 2621734, at *2 (Tex. App.-Houston
[1st Dist.] June 27, 2019, no pet.) (holding that State's
consent to waiver of jury trial was induced by
defendant's waiver of his right of appeal where
defendant's plea paperwork stated, "State waives
right to jury trial in exchange for Defendant waiving right
instance, in the Written Stipulation and Judicial Confession,
which was part of appellant's Plea of Guilty or Nolo
Contendere, appellant initialed the statement that "the
attorney for the State will recommend to the Court that my
punishment be assessed at the following," next to which
was handwritten in a blank space, "State will waive its
right to a jury trial. This is an 'open' plea without
a recommendation," followed by the preprinted statement,
"I agree and accept that recommendation and have entered
into a plea-bargain agreement for such recommendation."
And on the last page of the Plea of Guilty or Nolo
Contendere, the ADA's signature appears under the
statement, "Before the entry of the Defendant's
plea, I hereby consent to and approve the waiver of trial by
jury and the stipulations contained in this document,"
which "document"-Plea of Guilty or Nolo
Contendere-contains no reference to appellant's waiver of
appeal. In addition, the trial court's judgment states,
"it appearing to the Court that the Defendant, her
counsel, and the State's attorney have agreed in writing
in open court to waive a jury in the trial of this cause and
to submit this cause to the Court," and finds
"there was no plea-bargaining agreement between the
State and the Defendant," but makes no mention of
appellant's waiver of appeal. In sum, the pertinent
documents do not reflect that appellant's waiver of
appeal induced, even in part, the State's waiver of a
the certification appears defective, we abate the appeal and
remand the cause to the trial court for further proceedings.
The trial court shall conduct a hearing at which a
representative of the Fort Bend District Attorney's
Office and appellant's counsel shall be present.
Appellant shall also be present for the hearing in person or,
if appellant is incarcerated, at the trial court's
discretion, appellant may participate in the hearing by
closed-circuit video teleconferencing.
direct the trial court to:
1) Make findings regarding whether the State's consent to
appellant's waiver of her right to a jury trial was given
as consideration for appellant's waiver of her right to
2) If necessary, execute an amended certification of
appellant's right to appeal indicating whether appellant
has the right to appeal; and
3) Make any other findings and recommendations the trial
court deems appropriate. See Tex. R. App. P.
25.2(a)(2), (d), (f); 34.5(a)(12), (c)(2); 37.1.
trial court's court coordinator shall set the hearing
date no later than 20 days from the date of this order and
notify the parties and the Clerk of this Court of such date.
The trial court clerk is directed to file a supplemental
clerk's record containing the trial court's amended
certification, findings, and orders with this Court within 10
days of the date of the hearing. The court reporter is
directed to file the reporter's record of the hearing
within 10 days of the date of the hearing.
appeal is abated, treated as a closed case, and removed from
this Court's active docket. The appeal will be reinstated
on this Court's active docket when the supplemental
clerk's record and ...