Opinion
Appellate case number: 01-16-00960-CR
03-23-2017
Adrian Williams v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 1475112 Trial court: 263rd District Court of Harris County
Appellant, Adrian Williams, pleaded guilty without an agreed recommendation as to punishment, to the felony offense of aggravated robbery. See TEX. PENAL CODE § 29.03. The trial court assessed punishment at fifteen years' imprisonment. The trial court's certification of appellant's right to appeal states that "the defendant has waived the right to appeal." Appellant timely filed a notice of appeal. Appellant has filed a motion requesting that this Court abate the appeal and remand for the trial court to execute a corrected certification indicating that this is not a plea-bargain case and that appellant has the right to appeal. The motion is granted.
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 when we determine that an appellant has a right of appeal. See TEX. R. APP. P. 25.2(f), 34.5(c)(2), 37.1, 44.4; see also Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). In this case, the trial court's certification that appellant waived his right to appeal is defective because the record does not indicate a bargained-for waiver of appellant's right to appeal. See Ex parte Broadway, 301 S.W.3d 694, 697-99 (Tex. Crim. App. 2009); Washington v. State, 363 S.W.3d 589, 589 (Tex. Crim. App. 2012).
Accordingly, we abate the appeal and remand the cause 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, Allen C. Isbell, 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.
We direct the trial court to:
1) Execute an amended certification of appellant's right to appeal indicating whether or not appellant has the right to appeal; and
2) Make any other findings and recommendations the trial court deems appropriate.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 a supplemental clerk's record containing the 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 TEX. R. APP. P. 34.5(c)(2).
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/ Jane Bland
Acting individually Date: March 23, 2017