Opinion
No. 04-14-00658-CR
11-24-2014
James E. SALDANA, Appellant v. THE STATE OF TEXAS, Appellee
From the County Court at Law No. 12, Bexar County, Texas
Trial Court No. 365341
Honorable Scott Roberts, Judge Presiding
ORDER
The trial court's certification in this appeal states that "this criminal case is one in which the defendant has waived the right of appeal." The clerk's record contains a judgment and "Defendant's Waiver of Constitutional Rights and Court's Admonitions" showing that the defendant entered an "open plea" of nolo contendere without an agreed recommendation for sentencing. When a defendant waives the right to appeal before sentencing and without an agreed recommendation on punishment, the waiver is not valid. Washington v. State, 363 S.W.3d 589, 589-90 (Tex. Crim. App. 2012); Ex parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006) (when there is no recommended maximum punishment at the time the defendant waives the right to appeal, the consequences of such waiver cannot be known, and the waiver is not knowing and intelligent); see also Ex parte Broadway, 301 S.W.3d 694, 696 n.3 (Tex. Crim. App. 2009) (primary advantage to entering open plea is a relatively unlimited right to appeal). Therefore, the trial court certification does not accurately reflect the record before us. See TEX. R. APP. P. 25.2(a)(2), (d); Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005).
Accordingly, the trial court is ORDERED to prepare and file an amended trial court certification which accurately reflects the record, and the trial court clerk is instructed file a supplemental clerk's record containing said amended trial court certification in this Court within fifteen days from the date of this order. TEX. R. APP. P. 25.2(f), (d); 34.5(c); 37.1; see Dears, 154 S.W.3d at 614. All other appellate deadlines are suspended pending resolution of the certification issue.
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 24th day of November, 2014.
/s/_________
Keith E. Hottle
Clerk of Court