Opinion
Appellate case number: 01-15-00182-CR
09-01-2016
David Rowe Ashby v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 1864067 Trial court: County Criminal Court at Law No. 6 of Harris County
The trial court's certification of the appellant's right to appeal indicates that this "is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal." This certification is not supported by the record presently before this Court.
The record before the court does not reflect that the appellant entered a plea in exchange for any recommendation or action from the State. The appellant's plea paperwork indicates that he was pleading no contest, but the terms of the plea agreement with the State were "WOAR," and the judgment likewise states that the appellant pleaded no contest "without an agreed recommendation." Thus, the record suggests that the appellant entered an open plea.
If, however, there was a plea-bargain agreement, then the certification is unsupported because the record does not contain a written motion that was filed and ruled on before trial. The appellant raised an oral motion to suppress mid-trial, and after the motion was denied, the appellant pleaded no contest. A defendant who pleads pursuant to a plea bargain after the trial court's denial of a mid-trial oral motion to suppress does not have the right to appeal unless the trial court grants the defendant permission to appeal. Strimban v. State, 14-15-00251-CR, 2015 WL 8246324, at *2 (Tex. App.—Houston [14th Dist.] Dec. 8, 2015, no pet.).
We therefore abate this appeal and remove it from this Court's active docket. We direct the trial court to conduct a hearing at which a representative of the Harris County District Attorney's Office, appellant's attorney, and appellant shall be present. If appellant is incarcerated, at the trial court's discretion, appellant may participate in the hearing by closed-circuit video teleconferencing.
Any such teleconference must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound between the trial court, appellant, and any attorneys representing the State or appellant. On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State. --------
The trial court is directed to (1) make findings regarding whether appellant entered an open plea or entered a plea pursuant to a plea-bargain agreement and (2) execute an amended certification of the right to appeal that conforms with these findings. The certification must be signed by the judge, appellant, and appellant's counsel.
The trial court shall have a court reporter record the hearing, and a reporter's record of the hearing shall be filed in this court within 30 days of the date of this order. A supplemental clerk's record containing the trial court's findings and an amended certification shall be filed with the Clerk of this Court within 30 days of the date of this order.
The appeal will be reinstated on this Court's active docket when the supplemental clerk's record and reporter's record of the abatement hearing are filed in this Court. The court coordinator of the trial court shall set a hearing date and notify the parties of such date.
It is so ORDERED. Judge's signature: /s/ Rebeca Huddle
[v] Acting individually [ ] Acting for the Court Date: September 1, 2016