Vera Louise Clerkley v. State ( 2015 )

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CAUSE NO. 12-14-00342-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
VERA LOUISE CLERKLEY, } APPEALED FROM 3RD
APPELLANT
V. } DISTRICT COURT IN AND FOR
THE STATE OF TEXAS, } ANDERSON COUNTY, TEXAS
APPELLEE
PER CURIAM ORDER ON ABATEMENT AND REMAND
Appellant, Vera Louise Clerkley, pleaded guilty to felony theft and was placed on
community supervision for five years. Subsequently, on the State’s motion, the trial court
revoked Appellant’s community supervision and sentenced her to confinement in a state jail
facility for one year. She now appeals “from the judgment of conviction and sentence” for the
revocation of her community supervision. After examining the appellate record, we abate the
appeal and remand the case for further proceedings. See TEX. R. APP. P. 25.2(a)(2), 34.5(c)(2),
37.1; Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005).
The Trial Court’s Certification
A trial court is required to enter a certification of a defendant’s right of appeal in every
case in which it renders a judgment of guilt or other appealable order. See TEX. R. APP. P.
25.2(a)(2). In this case, the trial court’s certification is dated October 20, 2014, and is signed by
Appellant’s counsel but not by Appellant. The certification states that this case “is a plea-
bargain case, and the defendant has NO right of appeal” and that “the defendant has waived the
right of appeal.”
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The Record
The clerk’s record includes a document entitled “Felony Agreed Plea Recommendation”
signed by Appellant and her counsel. The document reflects that it was signed in connection
with Appellant’s guilty plea to the charged offense–“THEFT PROP>=$1,500<$20K.” The
agreed sentencing recommendation was community supervision “24 months probated for 5
years.” The document also contains a statement that “DEFENDANT WAIVES ALL RIGHT
TO APPEAL. The judgment of conviction shows that the trial court sentenced Appellant in
accordance with the plea agreement, and the trial court certification states that the case “is a plea-
bargain case, and the defendant has NO right of appeal.” Other documents in the clerk’s record
indicate that the State filed a motion to revoke Appellant’s community supervision and that the
trial court granted the motion. The reporter’s record of the revocation proceeding shows that,
after imposing sentence, the trial court advised Appellant that she had the right to appeal any
decision the court made and that her counsel would do that for her.
Applicable Law
According to Texas Rule of Appellate Procedure 25.2(a)(2), a plea bargain case is one in
which a defendant’s plea was guilty or nolo contendere. However, the clerk’s record shows that
this is an appeal from a revocation of community supervision. Although the judgment revoking
Appellant’s community supervision includes a finding that Appellant pleaded “true” to the
State’s motion to revoke, nothing in the record indicates that this was a negotiated plea.
Moreover, Rule 25.2(a) does not apply to negotiated pleas in revocation proceedings. See Dears
v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). Therefore, because the underlying case
is a revocation of community supervision, it is not a plea bargain case.
Furthermore, the “Felony Agreed Plea Recommendation” that contains the purported
waiver of Appellant’s right to appeal was executed at the time she was placed on community
supervision. A defendant may appeal her conviction and sentence at the time she is placed on
community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 23(b) (West Supp. 2014). A
defendant also may appeal the revocation of her community supervision if, as here, she is “called
on” to serve a sentence of confinement or incarceration. See id. Thus, for purposes of appeal,
the revocation is a separate proceeding from the conviction and sentencing. The purported
waiver signed by Appellant at the time she was placed on community supervision does not
purport to waive her right to appeal any subsequent revocation. Therefore, the record does not
reflect that Appellant has waived her right to appeal the revocation of her community supervision
or the resulting sentence.
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Abatement
Based on our review of the record, it does not appear that this case is a plea bargain case
or that Appellant waived the right to appeal the revocation of her community supervision or the
resulting sentence. Consequently, it appears that the trial court’s certification is defective. See
Dears, 154 S.W.3d at 614 (holding that a defective certification includes one that is correct in
form but, when compared to the record, proves to be inaccurate). Accordingly, we abate the
appeal and remand the case to the trial court to conduct a hearing, if necessary, to reconsider its
October 20, 2014 trial court certification.
We further direct that, after making its determination, the trial court re-certify whether
Appellant has the right to appeal. The trial court shall cause any hearing to be transcribed, make
findings of fact and conclusions of law supporting its determination, and issue any orders
necessary for resolution of the issue. The trial court’s findings of fact and conclusions of law,
the re-certification, and any orders it renders shall be included in a supplemental clerk’s record.
The reporter’s record of any hearing conducted shall be included in a supplemental reporter’s
record. The trial court shall, within thirty days of the date of this order, cause the clerk of the
trial court and the court reporter to forward to this Court any supplemental record prepared in
compliance with this order.
WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th
Court of Appeals District of Texas, at Tyler.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the
18th day of February 2015, A.D.
CATHY S. LUSK, CLERK
12TH COURT OF APPEALS
By: ________________________________
Katrina McClenny, Chief Deputy Clerk