Opinion
11-24-00164-CR
08-30-2024
ISAAC AVERY BURFORD, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See Tex.R.App.P. 47.2(b).
On Appeal from the 161st District Court Ector County, Texas Trial Court Cause No. B-22-0324-CR
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
W. BRUCE WILLIAMS, JUSTICE
Appellant was charged by indictment with aggravated robbery, a first-degree felony. Tex. Penal Code Ann. § 29.03(a)(2) (West 2019). On January 30, 2024, pursuant to a plea agreement between Appellant and the State, the trial court placed Appellant on deferred adjudication community supervision for a period of six years for the lesser-included offense of robbery. See id. § 29.02(b).
The State subsequently filed a motion to adjudicate Appellant's guilt, then amended it, alleging that Appellant committed four violations of the conditions of his community supervision. According to Appellant's judgment of conviction, the trial court held a hearing on the State's amended motion on May 28, 2024. Upon Appellant's plea of "true" to two allegations, the trial court found him guilty, revoked his community supervision, and assessed his punishment at imprisonment for eight years in the Institutional Division of the Texas Department of Criminal Justice.
On June 3, 2024, Appellant's appointed counsel filed a notice of appeal, and moved to withdraw. The following day, the trial court signed an "Amended Trial Court's Certification of Defendant's Right of Appeal" certifying that Appellant waived his right of appeal, but neither Appellant nor his counsel signed that form. See Tex. R. App. P. 25.2(a)(2), (d); see also Tex. Code Crim. Proc. Ann. art. 44.02 (West 2018). Rather, Appellant, his trial counsel, and the trial court signed a separate written waiver of his right to appeal dated June 4, 2024, the same day that the trial court signed its amended certification. Although both documents were purportedly executed on the same date, the waiver was file-stamped July 18, 2024, while the amended unsigned certification was file-stamped June 6, 2024.
We requested that Appellant's counsel respond and show grounds to continue the appeal. Appellant's counsel stated that Appellant waived his right to appeal his conviction, and that "the notice of appeal was filed . . . without authority or authorization of the trial court to do so." He provided a second trial court's certification and requested that we dismiss the appeal. But the subsequent trial court's certification dated June 6, 2024, rather than clarifying matters, only added to the existing confusion in the record. It is signed by Appellant and his trial counsel, and certifies that this was "a plea-bargain case, and the defendant has NO right of appeal[.]" The unsigned certification from June 4 reflects only that Appellant "waived the right of appeal."
We first observe that a plea-bargain case is defined as one 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. Tex.R.App.P. 25.2(a)(2). Here, Appellant did not plead guilty or nolo contendere. Instead, he pled true to allegations in the State's motion to adjudicate. See Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex. Crim. App. 2006) (holding that "Rule 25.2(a)(2) extends only to appeals from the initial plea of guilty in exchange for deferred adjudication, and not to appeals from the proceeding on the motion to adjudicate guilt"); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005) (explaining that Rule 25.2(a)(2) "refers only to plea bargains with regard to guilty pleas, not pleas of true on revocation motions"); Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) (observing that "[i]n the context of revocation proceedings, the legislature has not authorized binding plea agreements, has not required the court to inquire into the existence of a plea agreement or admonish the defendant pursuant to [Article] 26.13, and has not provided for withdrawal of a plea after sentencing"). As such, we do not have an accurate trial court's certification that is in proper form. See Tex. R. App. P. 25.2(a)(2).
Although the waiver supports the first, unsigned certification, the subsequent certification reflecting that this was a plea-bargain case is "correct in form but . . . prove[d] to be inaccurate." Dears, 154 S.W.3d at 613 (court of appeals should review the clerk's record to determine whether the trial court's certification is accurate). Given the apparent discrepancies between the certifications and the record, we abate this appeal and remand the cause to the trial court for entry of yet another certification addressing Appellant's right to appeal from the judgment adjudicating his guilt, including determinations as to whether this is in fact a plea-bargain case for which he has no right of appeal, and whether he has waived that right. See Tex. R. App. P. 34.5(c), 37.1; Dears, 154 S.W.3d at 614 (appellate courts have authority "to obtain another certification, whenever appropriate"). The district court clerk is instructed to file with this court a supplemental clerk's record containing that corrected certification no later than October 14, 2024.
It is so ordered.