Opinion
01-24-00021-CR
03-21-2024
Mark Kevin Alexander v. The State of Texas
Trial court: 486th District Court of Harris County, Trial court case number: 1804916
ORDER OF ABATEMENT
Julie Countiss, Judge
Appellant, Mark Kevin Alexander, without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of aggravated assault with a deadly weapon. The trial court found appellant guilty and assessed his punishment at confinement for eight years. The appellate record reflects that in exchange for appellant's waiver of his right to appeal, the State agreed "to waive its right to a jury trial and mandatory prison sentence on finding of guilt." See Carson v. State, 559 S.W.3d 489, 494 (Tex. Crim. App. 2018) ("[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."). On November 27, 2023, appellant filed a notice of appeal from his conviction.
On March 6, 2024, appellant's court-appointed appellate counsel filed a "Motion to Abate to Due to Conflicting Trial Court Certifications of Appellant's Right to Appeal." In the motion, counsel explained that the appellate record contained two conflicting certifications of appellant's right of appeal. Specifically, on November 1, 2023, the trial court signed a certification stating that appellant "ha[d] waived the right of appeal." But on November 27, 2023, the trial court signed a certification stating that this was "not a plea-bargain case, and [appellant] ha[d] the right of appeal." In the motion, counsel also noted that the record "seem[ed] to support a conclusion that [a]ppellant . . . waive[d] his right to appeal," but he requested that the Court abate this appeal for the trial court "to determine the status of [a]ppellant's right to appeal.
Here, the trial court's November 27, 2023 "Judgment of Conviction by Court-Wavier of Jury Trial," states: "APPEAL WAIVED, NO PERMISSION TO APPEAL GRANTED." And the "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" included in the record states: "The State agrees to waive its right to a jury trial and mandatory prison sentence on finding of guilt, in exchange for [appellant's] agreement to waive his right to appeal." But the trial court's November 27, 2023 certification of appellant's right to appeal conflicts with these portions of the appellate record as well as the trial court's November 1, 2023 certification of appellant's right to appeal.
The inconsistency between the two certifications of appellant's right to appeal contained in the record must be resolved before the appeal may proceed. See Lopez v. State, 595 S.W.3d 897, 899 n.1 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd.) (noting abatement necessary where there are conflicting certifications of appellant's right of appeal).
The Texas Rules of Appellate Procedure require this Court 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 the Court 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).
Accordingly, we grant appellant's motion and 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 court-appointed counsel, Scott Pope, 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) make a finding clarifying whether this is a plea-bargain case;
2) if this is a plea-bargain case, make a finding clarifying whether the trial court granted appellant permission to appeal;
3) if necessary, execute an amended certification of appellant's right to appeal;
4) make any other findings, conclusions, and recommendations the trial court deems appropriate; and
5) 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 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, if any, 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 court reporter is directed to file the reporter's record of the hearing 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.