Opinion
No. 04-17-00597-CR
02-28-2018
Donald Lee HALL, Appellant v. The STATE of Texas, Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B16-253
Honorable M. Rex Emerson, Judge Presiding
ORDER
We previously issued an order stating that the trial court's certification states "the defendant has waived the right to appeal guilt/innocence," but the judgment and written plea papers contained in the clerk's record show the defendant entered an "open plea" of guilty without an agreed recommendation for sentencing. We therefore concluded that the trial court certification did not accurately reflect that the defendant has the right to appeal and was thus defective. See Washington v. State, 363 S.W.3d 589, 589-90 (Tex. Crim. App. 2012); Ex parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006) (when there is no recommended maximum punishment at the time the defendant waives the right to appeal, the consequences of such waiver cannot be known, and the waiver is not knowing and intelligent); see also Ex parte Broadway, 301 S.W.3d 694, 696 n. 3 (Tex. Crim. App. 2009) (primary advantage to entering open plea is a relatively unlimited right to appeal). Accordingly, we ordered the trial court to prepare and file an amended trial court certification correcting the defect and showing the defendant has the right to appeal. See TEX. R. APP. P. 25.2(f), (d). A supplemental clerk's record containing the amended trial court certification stating that the defendant has the right to appeal has been filed in this court.
Accordingly, this appeal is retained on this court's docket. The appellant's brief is due thirty (30) days from the date of this order.
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 28th day of February, 2018.
/s/_________
KEITH E. HOTTLE,
Clerk of Court