Opinion
01-23-00499-CR
12-12-2024
Dennis Damian Anugwom v. The State of Texas
209th District Court of Harris County, No. 1679691.
ORDER OF CONTINUING ABATEMENT
Terry Adams, Judge
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 does not show what consideration was given by the State in exchange for appellant's waiver of the right of appeal.
On July 9, 2024, we abated this appeal for the trial court to conduct a hearing on whether appellant waived his right to appeal and whether the State gave consideration for appellant's waiver of his right of appeal. At the abatement hearing, the State contended that appellant "waived his right of appeal as part of the plea bargain because deferred [adjudication] was a possibility based on the range." Appellant's counsel responded, "it's clearly delineated on both the trial court cert and the plea paperwork that he has waived his right to appeal." The trial court responded, "And I agree that that was the intention of the parties, that he did waive his right to appeal; and we'll go from there." Subsequently, the trial court signed an August 29, 2024 certification of defendant's right of appeal, checking the box that "defendant has waived the right of appeal."
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"); Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009).
The record before this Court does not affirmatively indicate what consideration was given by the State in exchange for appellant's waiver of his right of appeal. See Washington v. State, 363 S.W.3d 589, 590 (Tex. Crim. App. 2012) (holding that appellant's waiver of right to appeal invalid when record does not confirm that State gave any consideration of appellant's waiver). Although appellant may have received the benefit of seeking deferred adjudication by the State's decision to consent to the jury trial waiver, the record does not show that appellant negotiated an agreement with the State to obtain this benefit in exchange for waiving his right to appeal. See Jenkins v. State, 495 S.W.3d 347, 352 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Thus, based on the record before this Court, the trial court's certification of defendant's right of appeal, stating that "defendant has waived the right of appeal," is defective.
Accordingly, we continue the abatement for the trial court to conduct 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) Determine whether appellant still wishes to pursue this appeal;
2) Make findings on whether the State gave consideration in exchange for appellant's waiver of his right of appeal;
3) Execute an amended certification of appellant's right to appeal; and
4) 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 remains 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.