David Martin Schmitt v. State ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00378-CR
DAVID MARTIN SCHMITT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 66,873-A, Honorable Dan L. Schaap, Presiding
December 4, 2018
ORDER OF ABATEMENT AND REMAND
Before CAMPBELL and PIRTLE and PARKER, JJ.
We previously remanded this cause on October 19, 2018, for the trial court to
prepare an amended certification of appellant’s right of appeal consistent with the record.
The trial court’s certification provides that appellant has the right of appeal, but the record
includes a waiver of appeal signed by appellant. We directed the trial court to file an
amended certification by November 19, but the trial court has not responded to our order.
On November 6, appellant’s trial counsel filed an affidavit with the district clerk stating
that the waiver “was inadvertently signed” by appellant and that appellant “did not intend
to waive any right of appeal.” That affidavit was filed with this Court on November 28.
Based on the representations of appellant’s trial counsel, we have reinstated the
appeal, and now abate the appeal and remand the cause to the 47th District Court of
Potter County for further proceedings. Upon remand, the trial court shall conduct a
hearing to determine whether appellant voluntarily, knowingly, and intelligently waived his
right of appeal. See Monreal v. State, 99 S.W.3d 615, 621 (Tex. Crim. App. 2003). The
trial court shall issue findings of fact and conclusions of law on this matter. Should the
trial court determine that the waiver was made voluntarily, knowingly, and intelligently, it
shall also prepare an amended certification consistent with the record. See TEX. R. APP.
P. 25.2(f).
The trial court shall cause to be developed (1) a supplemental clerk’s record
containing its findings, conclusions, and any amended certification, and (2) a reporter’s
record transcribing any evidence and argument presented at the hearing. TEX. R. APP. P.
34.5(c)(2). The record shall be filed with the Clerk of this Court on or before January 3,
2019. Should further time be needed to perform these tasks, then same must be
requested before January 3, 2019.
It is so ordered.
Per Curiam
Do not publish.
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