Opinion
Appellate case number: 01-17-00310-CR
10-10-2017
Hernan Patino v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 1488464 Trial court: 176th District Court of Harris County
Without an agreed punishment recommendation, appellant, Hernan Patino, pleaded guilty to the felony offense of indecency with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11(a), (c) (West 2011). The trial court assessed his punishment at confinement for ten years. Appellant timely filed a notice of appeal.
Appellant has filed a motion to abate the appeal in which he contends that the certification of appellant's right to appeal is defective. The trial court's certification states that "the defendant has waived the right of appeal." Appellant asserts that the record filed in this Court does not reflect an effective waiver of appellant's right of appeal. 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), 34.5(c)(2); see also Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
Accordingly, we grant appellant's motion, abate the appeal, and remand the case 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's counsel, Nicholas Mensch, shall be present. Appellant shall also be present for the hearing in person or, if he is incarcerated, at the trial court's discretion, he 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 his request, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the State's attorney.
We direct the trial court to:
1. make a finding regarding whether or not appellant has the right of appeal;See TEX. R. APP. P. 25.2(a)(2), (d), (f), 34.5(a)(12), (c)(2).
2. if necessary, execute an amended certification of appellant's right to appeal;
3. make any other findings and recommendations the trial court deems appropriate; and
4. enter written findings of fact, conclusions of law, and recommendations as appropriate, separate and apart from any docket sheet notations.
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 the amended certification of appellant's right to appeal and any other findings, recommendations, and orders of the trial court with this Court no later than 30 days from the date of this order. See id. 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. Judge's signature: /s/ Russell Lloyd
[v] Acting individually [ ] Acting for the Court Date: October 10, 2017