Opinion
01-23-00145-CR
01-09-2024
J.R. Washington v. The State of Texas
Trial court: 339th District Court of Harris County Trial court case number: 1478770
ORDER
Terry Adams Judge
The Clerk of the Court has examined the clerk's record in this appeal and has found that it does not comport with the Texas Rules of Appellate Procedure in that the trial court's certification of appellant's right of appeal is defective. See Tex. R. App. P. 25.2(a)(2), (d), 34.5(a)(12), 37.1. The certification states that this criminal case "Is not a plea-bargain case, and the defendant has the right of appeal." However, the record shows that as part of his plea documents, appellant waived any right of appeal in exchange for the State giving up their right to trial. See Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009) (providing that defendant may waive right to appeal as part of plea even when sentencing is not agreed upon, where consideration is given by State for waiver); see also Tex. R. App. P. 25.2(a)(2), (d); Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005) (requiring appellate courts to determine whether certification comports with record).
Accordingly, we abate the appeal and remand the cause to the trial court for further proceedings. The trial court shall immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's counsel, Tonya Rolland, 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) Execute an amended certification of appellant's right to appeal indicating whether or not appellant has the right to appeal; and
2) Make any other findings and recommendations the trial court deems appropriate.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, or court recorder, record the hearing. The trial court clerk is directed to file a supplemental clerk's record containing the certifications of appellant's right to appeal 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 appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal is further removed from submission on January 16, 2024, and oral argument canceled. 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.