Opinion
01-24-00334-CR
08-22-2024
Mark Steven Virovatz v. The State of Texas
County Court at Law No. 1 of Galveston County Trial court case number: MD-0414438
ORDER OF ABATEMENT
Amparo Monique Guerra, Judge
On March 28, 2024, the trial court entered a "Judgment of Conviction of Court- Waiver of Jury Trial," finding appellant, Mark Steven Virovatz, guilty of the Class B misdemeanor offense of driving while intoxicated. The appellate record reflects that appellant pleaded "nolo contendere" to the offense. According to the trial court's judgment, the "terms of [the] plea bargain" were that appellant would be sentenced to three days' incarceration. The record reflects that the trial court assessed appellant's punishment at three days' incarceration and assessed fines of $3,100.00. Also on March 28, 2024, the trial court entered a certification of appellant's right of appeal. In its certification, the trial court indicated that this was "a plea-bargain case, and the [appellant] has NO right of appeal," and that appellant "has waived the right of appeal."
Despite that, on April 29, 2024, appellant filed a notice of appeal from the trial court's final judgment. On July 15, 2024, the State filed a motion to dismiss the appeal, arguing that the Court lacked jurisdiction over the appeal because "the appellate record does not contain a certification[] by the trial court[] that [a]ppellant has the right to appeal."
As noted above, the appellate record includes a certification indicating that appellant does not have the right to appeal. This Court must dismiss a criminal appeal "if a certification that shows the defendant has a right of appeal has not been made part of the record under these rules." Tex.R.App.P. 25.2(d); Ex parte Tarango, 116 S.W.3d 201, 203 (Tex. App.-El Paso 2003, no pet.). Texas Rule of Appellate Procedure 25.2(a) states that:
A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal each time it enters a judgment
of guilt or other appealable order. . . In a plea bargain case-that is, 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 may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, (B) after getting the trial court's permission to appeal, or (C) where the specific appeal is expressly authorized by statute.Tex. R. App. P. 25.2(a)(2).
In its motion to dismiss, the State argues that the appellate record includes a certification indicating that appellant does not have a right to appeal, and therefore, his appeal "must be dismissed."
We note however, that in the plea bargain documentation, also included in the appellate record, there is not a clear indication of the specific agreement, if any, between appellant and the State regarding an agreed punishment recommendation in exchange for appellant's voluntary plea of nolo contendere. The plea bargain documentation states only that appellant understands that he has been charged with a Class B misdemeanor offense, "for which the punishment is by a fine not to exceed $2,000.00, or confinement in the Galveston County jail not to exceed 180 DAYS, or both." This language comports with the Texas Penal Code. See Tex. Penal Code Ann. § 12.22.
Despite that the fine for this offense is statutorily capped at $2,000, the trial court imposed a fine against appellant of $3,100. This fine exceeds the statutory limit and the record is unclear regarding whether the fine "exceed[s] the punishment recommended by the prosecutor and agreed to by" appellant. To the extent the fine exceeds the statutory limit or exceeds the punishment recommendation agreed to by the State and appellant, appellant may have the 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).
Based on the record presented at this time, we deny the State's motion to dismiss, and further abate the appeal and remand to the trial court for further proceedings. The trial court shall, within fifteen days of the date of this order, conduct a hearing at which a representative of the Galveston County District Attorney's Office and appellant, who is representing himself, shall be present.
We direct the trial court to:
1) make a finding clarifying whether there was an agreement between the State and appellant regarding a punishment recommendation, and, if so, the terms of that agreed recommendation;
2) if the trial court's punishment exceeded the agreed punishment recommendation;
3) if the trial court granted appellant permission to appeal;
4) if necessary, execute an amended certification of appellant's right to appeal;
5) make any other findings, conclusions, and recommendations the trial court deems appropriate; and
6) 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 thirty 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 thirty 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, or on successful motion of the parties. The court coordinator of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.