Opinion
01-22-00726-CR
04-06-2023
Eddie Roy Olvera v. The State of Texas
208th District Court of Harris County No. 1596786
ORDER OF ABATEMENT
Amparo Guerra, Judge
On September 20, 2022, the trial court entered a "Judgment of Conviction of Court- Waiver of Jury Trial," convicting appellant, Eddie Roy Olvera, of the second-degree felony offense of aggravated assault. The appellate record reflects that appellant was originally charged with the felony offense of murder, however, pursuant to an agreement with the State, the State agreed to reduce the charge to aggravated assault in exchange for appellant's agreement to enter a plea of guilty to the lesser offense. At the time appellant entered his plea, the case was reset for a presentence investigation hearing. On June 29, 2022, the trial court executed a certification of appellant's right of appeal stating that this is "a plea-bargain case, and the [appellant] has NO right of appeal."
At the conclusion of the presentence investigation hearing, the trial court entered its judgment, sentencing appellant to 24 years incarceration. On October 5, 2022, the trial court executed a second certification of appellant's right of appeal, which stated that this "is not a plea-bargain case, and the [appellant] has the right of appeal." On October 7, 2022, appellant filed a notice of appeal from his conviction.
On March 20, 2023, appellant's court-appointed appellate counsel filed a "Motion to Abate for Determination of Appellant's Right to Appeal." The motion notes that the trial court executed the above-described certifications of appellant's right of appeal. The October 5, 2022 certification is in conflict with the appellate record, and the first certification entered by the trial court on June 29, 2022.
This inconsistency must be resolved before the appeal may proceed. See Lopez v. State, 595 S.W.3d 897, 899 n.1 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd.) (noting abatement necessary where there are conflicting certifications of appellant's right of appeal).
The Texas Rules of Appellate Procedure require this Court 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 the Court 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).
Accordingly, we grant appellant's motion and abate the appeal and remand the cause to the trial court for further proceedings. Within fourteen days of the date of this order, the trial court shall 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.
Any such teleconference must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound between the trial court, appellant, and any attorneys representing the State or appellant. On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State.
We direct the trial court to:
1) make a finding clarifying whether this is a plea-bargain case;
2) if this is a plea-bargain case, if the trial court granted appellant permission to appeal;
3) if necessary, execute an amended certification of appellant's right to appeal;
4) make any other findings, conclusions, and recommendations the trial court deems appropriate; and
5) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.See Tex. R. App. P. 25.2(a)(2), (d), (f), 34.5(a)(12), (c)(2), 37.1.
The trial court shall have a court reporter record the hearing. The trial court clerk is directed to file a supplemental clerk's record containing the amended certification of appellant's right to appeal, if any, and any other findings, recommendations, and orders of the trial court with this Court no later than 30 days from the date of this order. See Tex. R. App. P. 34.5(c)(2). The court reporter is directed to file the reporter's record of the hearing within 30 days of the date of this order.
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 is filed with the Clerk of this Court. The court coordinator of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.