Opinion
01-23-00499-CR
07-09-2024
Dennis Damian Anugwom v. The State of Texas
209th District Court of Harris County Trial court case No: 1679691
ORDER OF ABATEMENT
Terry Adams, Judge
Appellant Dennis Damian Anugwom pleaded guilty, without an agreed punishment recommendation to the felony offense of Medicaid fraud, greater than $200,000. The trial court assessed punishment at confinement for 16 years. 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.
On March 21, 2024, appellant filed a motion to abate the appeal in which he contends that the trial court's certification of appellant's waiver of his right to appeal is unclear. The State has not responded to appellant's motion to abate.
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).
Because appellant's sentencing was not agreed upon, appellant could not effectively waive his right of appeal unless the State gave him consideration for that waiver. See Carson v. State, 559 S.W.3d 489, 494-96 (Tex. Crim. App. 2018) (holding that record must show that State gave its consent to defendant's waiver of his right to jury trial "in exchange for the defendant's waiver of his appeal," and that defendant's waiver "was made in exchange for consideration given by the State and, thus, was voluntary, knowing and intelligent").
In the underlying case, appellant was charged with committing the offense of Medicaid fraud greater than $200,000. The record shows that appellant pled guilty without an agreed punishment recommendation and that punishment would be assessed after a PSI hearing. Multiple instances in the record also indicate that appellant waived his right of appeal, but the record is unclear as to what consideration was given by the State for appellant's waiver of the right of appeal.
A defendant may waive his right to appeal as a part of a plea even when sentencing is not agreed upon, where consideration is given by the State for that waiver. Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009). Here, the record does not affirmatively indicate what consideration was given by the State for appellant's waiver of his right of appeal.
Accordingly, we grant appellant's motion, abate the appeal, and remand the cause to the trial court for further proceedings. The trial court shall within 30 days conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's 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.
We direct the trial court to:
1) Make findings regarding whether appellant waived his right to appeal and whether the State gave consideration for appellant's waiver of his right of appeal.
2) If necessary, execute an amended certification of appellant's right to appeal indicating whether or not appellant has the right to appeal; and
3) 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 court coordinator of the trial court shall set a hearing date no later than 30 days from the date of this order and notify the parties and the Clerk of this Court of such date. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's amended certification of appellant's right to appeal, if any, and any other findings, recommendations, and orders of the trial court with this Court within 30 days of the date of the hearing. The court reporter is directed to file the reporter's record of the hearing within 30 days of the date of the hearing.
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 and the reporter's record of the hearing are filed in this Court.
It is so ORDERED.