Richard Bernard Stepp v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00162-CR

Richard Bernard Stepp,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 06-03822-CRF-272

ABATEMENT ORDER

            Pursuant to a plea bargain, Richard Bernard Stepp pleaded guilty to the manufacture or delivery of less than one gram of cocaine in a drug-free zone.  The court sentenced Stepp to eighteen years’ imprisonment in accordance with the plea agreement.  Stepp filed a pro se notice of appeal.

            The certification of the defendant’s right to appeal states that this is a plea-bargain case and Stepp has no right of appeal.  See Tex. R. App. P. 25.2(d). Accordingly, the Clerk of this Court notified Stepp by letter that his appeal appears subject to dismissal because of the recitations in the certification regarding his right of appeal and that the appeal may be dismissed if a response showing grounds for continuing the appeal was not filed within twenty-one days.

            In response, Stepp contends that his appeal is authorized because he seeks review of matters raised by a written motion filed and ruled upon before trial.  See Tex. R. App. P. 25.2(a)(2)(A).  However, Stepp refers to his motion for new trial (which was necessarily filed after his “trial”) to support this contention.  Nevertheless, the docket sheet in the clerk’s record indicates that Stepp filed a motion to quash which was denied before trial.  Therefore, it appears that the trial court’s certification is defective.

            The appropriate remedy in this situation is for the appeal to be abated for entry of an amended certification of the defendant’s right of appeal.  See Harris v. State, 137 S.W.3d 829, 830-31 (Tex. App.—Waco 2004, order) (per curiam); see also Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005). Accordingly, we abate this appeal to the trial court for entry of (1) an amended certification or (2) written findings of fact and conclusions of law supporting the statement that Stepp has no right of appeal.

            The trial court shall deliver the amended certification or its written findings of fact and conclusions of law to the trial court clerk within fourteen days after the date of this Order.[1] The trial court clerk shall: (1) prepare a supplemental clerk’s record containing the amended certification or the written findings of fact and conclusions of law; and (2) file the supplemental clerk’s record with the Clerk of this Court within twenty-one days after the date of this Order.

                                                                                    PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal abated

Order issued and filed June 27, 2007

Do not publish

[CR25]

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[1]               If the trial court agrees that Stepp has a limited right of appeal and accordingly amends its certification, the court must also admonish him on the record “of the dangers and disadvantages of self-representation” and determine whether Stepp desires to represent himself.  See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order) (per curiam).  An inquiry regarding Stepp’s representation will necessarily require the preparation and filing of additional documents such as: (1) findings regarding Stepp’s indigence; and (2) a written waiver of counsel if Stepp persists in representing himself.  See Tex. Code Crim. Proc. Ann. art. 1.051(d), (g) (Vernon 2005); see also Fewins, 170 S.W.3d at 294-96. Such documents must also be included in the supplemental clerk’s record required by this abatement order.