Abner L. Washington ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Abner L. Washington v. The State of Texas
Appellate case number: 01-14-00885-CR
Trial court case number: 1430059
Trial court: 248th District Court of Harris County
Appellant, Abner L. Washington, without an agreed punishment recommendation from
the State, pleaded guilty to the state-jail-felony offense of possession of a controlled substance,
namely, cocaine weighing less than one gram. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(3)(D), 481.115(a), (b) (West 2010). The trial court found appellant guilty and
assessed punishment at confinement for sixty days. See TEX. PENAL CODE ANN. § 12.44(a) (West
2011).1 The trial court executed a certification of appellant’s right to appeal, stating that “the
defendant has waived the right of appeal.” Appellant, acting pro se, filed a notice of appeal. On
September 15, 2014, the trial court appointed counsel to represent appellant on appeal.
Pursuant to his plea, appellant signed a “Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession” that states “I waive any right of appeal which I may have
should the court accept the foregoing plea bargain agreement between myself and the
prosecutor.” However, the document also states, “I intend to enter a plea of guilty and the
prosecutor will recommend that my punishment should be set at WOAR,” meaning that the plea
was without an agreed recommendation. The judgment states that the degree of offense is a
“STATE JAIL FELONY–SEC. 12.44A”; the plea was “GUILTY”; and the “Terms of Plea
Bargain” were “WITHOUT AN AGREED RECOMMENDATION.” The judgment also states
“APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.” There is no reporter’s
record.
1
Under section 12.44(a), a trial court may punish a defendant convicted of a state-jail-
felony offense by imposing the confinement permissible for a Class A misdemeanor.
TEX. PENAL CODE ANN. § 12.44(a) (West 2011); see id. §12.21 (providing punishment
for Class A misdemeanor at confinement for term not to exceed one year and fine not to
exceed $4000.00); §12.35(a) (West Supp. 2015) (providing punishment for state-jail
felony at confinement for term of not more than two years or less than 180 days).
Appellant’s pro se notice of appeal states that he pleaded guilty in exchange for
misdemeanor punishment.
The State has filed a motion to dismiss the appeal contending that appellant has waived
the right to appeal, and the trial court’s judgment and certification of right to appeal reflect that
waiver. Appellant has responded that the record does not reflect an effective waiver of the right
to appeal because appellant pleaded guilty without an agreed punishment recommendation and
the record does not reflect that the State gave other consideration in exchange for a waiver of the
right to appeal. See Washington v. State, 363 S.W.3d 589 (Tex. Crim. App. 2012) (citing Ex
parte Delaney, 207 S.W.3d 794, 797 (Tex. Crim. App. 2006)) (“[W]hen a defendant waives his
right to appeal before sentencing and without an agreement on punishment, the waiver is not
valid.”); but see Ex parte Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009) (holding
defendant may knowingly and voluntarily waive appeal without sentencing agreement when
State gives consideration for waiver); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App.
2003) (providing waiver of appeal made after sentence is imposed is valid).
The Texas Rules of Appellate Procedure require us 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 us
from dismissing an appeal based on the lack of a valid certification. See TEX. R. APP. P. 25.2(f),
34.5(c)(2), 44.4; see also Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
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, Sarah V. Wood, 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.2 We direct the trial court to:
1) Make a finding regarding whether or not appellant has the right to appeal;
2) If necessary, execute an amended certification of appellant’s right to appeal
indicating whether or not appellant has the right to appeal;
3) Make any other findings and recommendations the trial court deems appropriate;
and.
4) Enter written findings of fact, conclusions of law, and recommendations as to
these issues, separate and apart from any docket sheet notations.
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 any amended certification
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 court reporter is directed to file the reporter’s record of the hearing within 30
2
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.
days of the date of this order. If the hearing is conducted by video teleconference, a certified
recording of the hearing shall also be filed in this Court within 30 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. The court coordinator of the trial court shall set a
hearing date and notify the parties.
It is so ORDERED.
Judge’s signature: /s/ Russell Lloyd
 Acting individually  Acting for the Court
Date: January 14, 2016