Opinion
01-23-00441-CR
08-21-2023
Albert Oum Ndjock v. The State of Texas
458th District Court of Fort Bend County Trial court case number: 21-DCR-096170.
ORDER OF ABATEMENT
Julie Countiss, Judge.
Appellant, Albert Oum Ndjock, without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of sexual assault of a child. The trial court found appellant guilty and assessed his punishment at confinement for fifteen years. The trial court signed a certification of appellant's right to appeal stating that this was "a plea-bargain case, and [appellant] ha[d] NO right of appeal" and that appellant "ha[d] waived the right of appeal." Appellant filed a pro se notice of appeal.
After appellant filed his notice of appeal, he filed a "Motion for an Appeal Attorney" in the trial court, which was granted, and David M. Ryan was appointed to represent appellant on appeal. However, a docket entry from July 27, 2023 states: "The trial court['s] certification signed by [the former trial court judge] indicate[d] that [appellant] waived his right to appeal. I did not locate the usual [appellate] waiver in the [c]ourt's file. Appellate counsel is appointed from the wheel to check on this and handle related direct appeal matters that may be appropriate."
The Texas Rules of Appellate Procedure clearly set out the right to appeal for criminal defendants. See Lewis v. State, No. 01-22-00303-CR, 2022 WL 141565900, at *1 (Tex. App.-Houston [1st Dist.] Oct. 25, 2022, no pet.) (mem. op., not designated for publication); Lagunas v. State, No. 01-20-00279-CR, 2020 WL 5823291, at *1 (Tex. App.-Houston [1st Dist.] Oct. 1, 2020, no pet.) (mem. op., not designated for publication). Texas Rule of Appellate Procedure 25.2 states that in a case where a defendant has voluntarily pleaded guilty, the defendant may only appeal those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission. See Tex. R. App. P. 25.2(a)(2); see also Tex. Code Crim. Proc. Ann. art. 44.02. The trial court must sign a certification of a defendant's right of appeal each time it enters a judgment of guilt or other appealable order. Tex.R.App.P. 25.2(a)(2). And an appeal must be dismissed if a certification showing that the defendant has a right of appeal has not been made part of the record. Tex.R.App.P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).
Although a defendant has a statutory right to appeal his conviction, a defendant may waive his right to appeal in all but capital cases. Carson v. State, 559 S.W.3d 489, 492-93 (Tex. Crim. App. 2018). A valid waiver of appeal-one made voluntarily, knowingly, and intelligently-prevents a defendant from appealing without the trial court's consent. See id.; Ex parte Broadway, 301 S.W.3d 694, 697-99 (Tex. Crim. App. 2009); see also Flores v. State, Nos. 01-20-00243-CR to 01-20-00246-CR, 2020 WL 2988564, at *1 (Tex. App.- Houston [1st Dist.] June 4, 2020, pet. ref'd) (mem. op., not designated for publication). "[A] defendant may knowingly and intelligently waive his appeal as part of a plea when consideration is given by the State, even when sentencing is not agreed upon." Carson, 559 S.W.3d at 494; see Jones v. State, 488 S.W.3d 801, 804-08 (Tex. Crim. App. 2016) (explaining presentence waivers of right of appeal have been upheld when record showed defendant received consideration for waiver); see also Tex. Code Crim. Proc. Ann. art. 1.14(a) ("The defendant in a criminal prosecution for any offense may waive any rights secured him by law . . . ."); Flores, 2020 WL 2988564, at *1.
Notably, in exchange for a defendant's waiver of his right to appeal, the State may agree to waive its right to a jury trial. See Tex. Code Crim. Proc. Ann. art. 1.13(a); see also Harrison v. State, No. 01-20-00093-CR, 2020 WL 7776082, at *2 (Tex. App.- Houston [1st Dist.] Dec. 31, 2020, no pet.) (mem. op., not designated for publication); Flores, 2020 WL 2988564, at *2. Thus, if a defendant attempts to appeal from a trial court's judgment of conviction, but the record shows that he voluntarily waived his statutorily created right of appeal in exchange for the State waiving its right to a jury trial, then the appellate court must dismiss the appeal for lack of jurisdiction. See Lewis, 2022 WL 141565900, at *3.
Here, although the certification of appellant's right to appeal states that this was "a plea-bargain case, and [appellant] ha[d] NO right of appeal" and that appellant "ha[d] waived the right of appeal," the trial court has also noted that "the usual [appellate] waiver [is not contained] in the [c]ourt's file" related to appellant's case. Thus, this Court abates this appeal and remands the case to the trial court for it to determine whether appellant has a right to appeal.
The trial court shall immediately conduct a hearing at which a representative of the Fort Bend District Attorney's Office and appellant's appointed counsel, David M. Ryan, 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.
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.
We direct the trial court to:
1) determine whether appellant has a right to appeal;
2) if necessary, execute an amended certification of appellant's right to appeal;
3) make any other findings, conclusions, and recommendations the trial court deems appropriate; and
4) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.See Tex. R. App. P. 25.2(a)(2), (d), (f), 34.5(a)(12), (c)(2), 37.1.
The trial court shall have a court reporter, or court recorder, record the hearing. The trial court clerk is directed to file, with this Court, a supplemental clerk's record containing any waiver of appellant's right to appeal, any amended certification of appellant's right to appeal, and any findings, recommendations, and orders of the trial 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 appeal will be reinstated on this Court's active docket when the supplemental clerk's record is filed with the Clerk of this Court. The court coordinator of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.