Opinion
NO. 03-15-00240-CR
06-16-2016
Tracy Larance Gordon, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 71792, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDINGORDER AND MEMORANDUM OPINION
PER CURIAM
Tracy Larance Gordon was arrested and charged with burglary of a habitation. See Tex. Penal Code § 30.02(a) (prohibiting crime of burglary). The indictment also contained two enhancement paragraphs alleging that Gordon had previously been convicted of two prior felony offenses. Under the terms of a plea-bargain agreement, the State agreed to waive one of the enhancement allegations in exchange for Gordon entering a plea of guilty to the charged offense and a plea of true to the other enhancement allegation. See Carender v. State, 155 S.W.3d 929, 931 (Tex. App.—Dallas 2005, no pet.) (explaining that agreement to waive enhancement allegation in exchange for defendant agreeing to plead guilty constituted plea agreement that placed cap on punishment). During the plea hearing, Gordon pleaded guilty to the offense at issue as well as one enhancement allegation, and the district court determined that there was enough evidence to support the plea and found Gordon guilty of the offense. The district court's "certificate of defendant's right to appeal" states that this case "is not a plea-bargain case, and the defendant has the right of appeal."
In determining whether an appellant in a criminal case has the right to appeal, we examine the trial court's certification for defectiveness, defined as a certification that is "correct in form but which, when compared to the record before the court, proves to be inaccurate." Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). If the certification appears to be defective, we must obtain a correct certification. Id. at 614-15; see also Tex. R. App. P. 34.5(c), 37.1.
Based on the record before this Court, it appears that the district court's certification, signed March 19, 2015, may be incorrect. Therefore, we abate the appeal and remand the case to the district court either to issue a new certification or to issue findings of fact and conclusions of law explaining why there was no plea-bargain agreement in this case. See Dears, 154 S.W.3d at 614-15; Tex. R. App. P. 37.1. The district court clerk is instructed to forward to this Court a supplemental clerk's record containing the amended certification or the findings and conclusions no later than July 13, 2016.
It is ordered on June 16, 2016. Before Justices Puryear, Pemberton, and Bourland Abated and Remanded Filed: June 16, 2016 Do Not Publish