Opinion
CAUSE NO. 12-13-00190-CR
07-11-2014
DONALD MILLER BALL, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEALED FROM 217TH
DISTRICT COURT IN AND FOR
ANGELINA COUNTY, TEXAS
PER CURIAM ORDER FOR ABATEMENT AND REMAND
Appellant Donald Miller Ball appeals his conviction for aggravated sexual assault. The State has filed a motion to dismiss the appeal or, alternatively, to remand because the trial court's certification is defective. Appellant has filed a response to the State's motion. After examining the appellate record, we grant the State's motion (except as to its request that the trial court correct its judgment after re-certification), abate the appeal, and remand the case for further proceedings. See TEX. R. APP. P. 25.2(a)(2), 34.5(c)(2), 37.1; Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005). The Trial Court's Certification
A trial court is required to enter a certification of a defendant's right of appeal in every case in which it renders a judgment of guilt or other appealable order. See TEX. R. APP. P. 25.2(a)(2). Here, the trial court filed two certifications. The first is dated March 21, 2013, and states that "[t]his criminal case is not a plea-bargain case and the defendant has the right of appeal." The second is dated May 30, 2013, and states that "this criminal case is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal." Beside this statement is the handwritten notation "punishment only." Both certifications are signed by Appellant and his counsel. The Record
The clerk's record includes a document entitled "Written Plea Admonishments-Waivers-Stipulations." In paragraph 1 of the document, Appellant is informed that he is charged with aggravated sexual assault of a child. In another part of the document is a recitation that "[t]he State and I mutually recommend to the Court that punishment in this case be assessed at[.]" This is followed by the handwritten notation "The state agrees that there will be a cap on punishment of no more than 30 years confinement Texas Department of [C]riminal [J]ustice institutional division."
At the plea hearing, the trial court judge stated that "[t]here is - I will note for the record that there is a cap of 30 years, also the possibility of the Court granting deferred adjudication. Defense counsel confirmed "[t]hat full range, we're aware that's what the Court could do in this case[,]" and the defendant acknowledged his understanding that the court "can give up to 30 years or as low as five years deferred." Discussion
In a plea bargain case (a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant), a defendant has a limited right to appeal. See TEX. R. APP. P. 25.2(a)(2). He may appeal those matters that were raised by written motion filed and ruled on before trial, or after getting the trial court's permission to appeal. Id
The State agrees with the trial court's second certification insofar as it states that the case is a plea bargain case. However, the State argues that to have the right to appeal as certified, "[t]he Defendant must have entered a written motion before the trial commenced and jeopardy attached on March 21, 2013, and that written motion must apply to punishment only. None of the issues Defendant raises on appeal fall into this category. In fact, all motions by Defendant before trial commenced were granted." The record confirms that Appellant's pretrial motions were granted. Abatement
Based on our review of the record, it appears that the trial court's certification is defective. See Dears, 154 S.W.3d at 614 (holding that a defective certification includes one that is correct in form, but, when compared to the record, proves to be inaccurate). Accordingly, we abate the appeal and remand the case to the trial court to conduct a hearing, if necessary, to determine whether Appellant and the State entered into a plea bargain agreement, and the terms of any such agreement. See TEX. R. APP. P. 34.5(c), 44.3, 44.4; Dears, 154 S.W.3d at 614. The trial court shall also determine whether there was an agreement or permission for Appellant to appeal. The trial court shall cause any hearing to be transcribed, make findings of fact and conclusions of law supporting its determination, and issue any orders necessary for resolution of the issues stated in this order.
We further direct that, after making its determination, the trial court re-certify whether Appellant has the right to appeal. The trial court's findings of fact and conclusions of law, the re-certification, and any orders it renders shall be included in a supplemental clerk's record. The reporter's record of any hearing conducted shall be included in a supplemental reporter's record. The trial court shall, within twenty days of the date of this order, cause the clerk of the trial court and the court reporter to forward to this Court any supplemental record prepared in compliance with this order.
WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12Court of Appeals District of Texas, at Tyler.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this 11th day of July 2014, A.D.
CATHY S. LUSK, CLERK
12 COURT OF APPEALS
By: __________
Katrina McClenny, Chief Deputy Clerk