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Sims v. State

State of Texas in the Fourteenth Court of Appeals
Nov 14, 2017
NO. 14-16-00707-CR (Tex. App. Nov. 14, 2017)

Opinion

NO. 14-16-00707-CR NO. 14-16-00708-CR NO. 14-16-00709-CR

11-14-2017

TUCKER RAPHE SIMS, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 208th District Court Harris County, Texas
Trial Court Cause Nos. 1454181 , 1454182, and 1454183

ABATEMENT ORDER

This court received the clerk's records in these appeals on September 30, 2016. The certifications of the defendant's right of appeal appear to be incorrect. Each certification states this case "is a plea-bargain case, and the defendant has NO right of appeal." Our review of the clerk's records show this is not a plea bargain case.

The records show that defendant pleaded guilty without an agreed recommendation as to sentencing. Although negotiated waivers of the right to appeal are valid, non-negotiated waivers of the right to appeal are valid only if the defendant waived the right of appeal, knowing with certainty the punishment that would be assessed. See Washington v. State, 363 S.W.3d 589, 589-90 (Tex. Crim. App. 2012); Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003). The records in this case do not reflect that appellant waived his right to appeal knowing with certainty the punishment that would be assessed. See Ex parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006); Blanco v. State, 18 S.W.3d 218, 219 (Tex. Crim. App. 2000).

The appellate clerk notified the trial court by letter on three separate occasions (October 20, 2016, November 30, 2016, and January 12, 2017) of the records' apparent inaccuracy and directed the trial court to review the records, prepare and certify supplemental clerk's records containing the corrected certifications, and file the supplemental clerk's records with this court.

On November 21, 2016, the trial judge conducted an "appeal hearing," and acknowledged appellant's right to appeal and the need for a corrected certification:

The Court: ...There are three cause numbers...1454181, 1454182, and 1454183. To recap, you had been —the Court of Appeals sent me an order to address with you and your retained attorney at that time about the status of your appeal because apparently the documentation where it reflects that you have the right to appeal was incorrect. It was a pleas without a recommendation and I did the sentencing; is that correct?

The Defendant: Yes.

The Court: And in that regard, you do have a right to an appeal....


* * *

The Court: ...So I am going to order the court reporter to transcribe this hearing and send that off to the Court of Appeals letting them
know that you do, in fact, have the right to appeal. I have determined that you are indigent, and you have an attorney on appeal, and the appropriate certificate needs to be filed showing that he does have the right to appeal. That needs to be sent to the Court of Appeals.
To date, this court has not received a corrected certification from the trial court in any of these appeals.

An appeal must be dismissed if a certification showing that the defendant has the right of appeal has not been made part of the record. Tex. R. App. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). In connection with this record, pursuant to the Rules of Appellate Procedure, we abate the appeal in each case and direct the trial court to file corrected certifications of the defendant's right to appeal with the trial court clerk and direct the clerk to prepare and file a supplemental clerk's record in each case containing the corrected certification with this court within 15 days of the date of this order. See Tex. R. App. P. 34.5(c)(2), 37.1, 44.4; Cortez v. State, 420 S.W.3d 803, 806-07 (Tex. Crim. App. 2013).

PER CURIAM Panel consists of Justices Jamison, Busby, and Donovan.


Summaries of

Sims v. State

State of Texas in the Fourteenth Court of Appeals
Nov 14, 2017
NO. 14-16-00707-CR (Tex. App. Nov. 14, 2017)
Case details for

Sims v. State

Case Details

Full title:TUCKER RAPHE SIMS, Appellant v. THE STATE OF TEXAS, Appellee

Court:State of Texas in the Fourteenth Court of Appeals

Date published: Nov 14, 2017

Citations

NO. 14-16-00707-CR (Tex. App. Nov. 14, 2017)