Terence Nathaniel Tompkins v. State ( 2012 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Terence Nathaniel Tompkins v. The State of Texas
Appellate case number: 01-12-00592-CR
Trial court case number: 1337275
Trial court: 232nd District Court of Harris County
The grand jury returned a true bill of indictment against appellant for the state-jail felony
offense of possession of a controlled substance. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(a), (b) (West 2010). On February 17, 2012, the trial court appointed the public
defender’s office, who assigned Randy Martin, to represent appellant. On June 11, 2012,
appellant pleaded guilty, and the trial court entered judgment against appellant and executed a
certification of appellant’s right of appeal, indicating both that this “is a plea-bargain case, and
the defendant has NO right of appeal” and that “the defendant has waived the right of appeal.”
Appellant, acting pro se, filed a notice of appeal on June 19, 2012. Although the record contains
no indication that appellant’s counsel moved to withdraw or was permitted to withdraw, no
counsel has appeared on appellant’s behalf in this appeal.
The trial court’s certification of the appellant’s right of appeal is defective. The
certification states that this is a plea-bargain case, but the record contradicts the certification. See
Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (holding that recitations in trial
court records are binding unless record contradicts them). According to both the judgment and
the “waiver of Constitutional rights, agreement to stipulate, and judicial confession,” appellant
did not plead pursuant to a plea bargain, he pleaded “without an agreed recommendation.” See
Blanco v. State, 18 S.W.3d 218, (Tex. Crim. App. 2000). Further, the record does not contain a
written waiver of the right to appeal that was either executed in exchange for some consideration
from the State or after appellant was sentenced. See Ex parte Broadway, 301 S.W.3d 694, 699
(Tex. Crim. App. 2009); Ex parte Delaney, 207 S.W.3d 794, 799–800 (Tex. Crim. App. 2006).
Although appellant could have orally waived the right to appeal after the trial court imposed the
sentence, no reporter’s record has been filed and the record does not otherwise support an oral
waiver. See Monreal v. State, 99 S.W.3d 615, 616 (Tex. Crim. App. 2003); Moreno v. State, 327
S.W.3d 267, 268–69 (Tex. App.—San Antonio 2010, no pet.). Because the certification is
contradicted by the record, we will not presume that appellant waived the right to appeal. See
Breazeale, 683 S.W.2d at 450.
The Rules of Appellate Procedure require us to dismiss an appeal unless a certification
showing that the appellant has the right to appeal has been made part of the record. See TEX. R.
APP. P. 25.2(a)(2). The rules also provide that an amended trial court’s certification of the
defendant’s right to appeal correcting a defect or omission may be filed in the appellate court.
See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1.
In addition, if the appellant has the right of appeal and still desires to pursue this appeal,
he is entitled to court-appointed counsel. See TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1),
26.04(p) (West Supp. 2011); Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987); Lopez
v. State, 486 S.W.2d 559, 560 (Tex. Crim. App. 1972); Fowler v. State, 874 S.W.2d 112, 114
(Tex. App.—Austin 1994, order, pet. ref’d).
We, therefore, abate this appeal and remand the cause to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing within 15 days of the date of this
order at which a representative of the Harris County District Attorney’s Office and appellant’s
counsel, Randy Martin, 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 use of a closed-circuit video teleconferencing system that provides for a simultaneous
compressed full motion video and interactive communication of image and sound. 1
We direct the trial court to:
1) Make a finding whether appellant knowingly and voluntarily made an oral waiver
of the right to appeal after being sentenced;
2) Execute an amended certification of appellant’s right to appeal indicating either
that appellant has the right of appeal or that appellant waived the right to appeal;
3) Determine whether appellant still wishes to pursue this appeal;
4) Determine whether appellant’s counsel, Randy Martin, intends to represent
appellant on appeal or whether counsel should be permitted to withdraw;
5) If counsel is permitted to withdraw, appoint substitute appellate counsel at no
expense to appellant, regardless of whether appellant has waived the right to
appeal;
6) Make any other findings and recommendations the trial court deems appropriate;
and
7) Enter written findings of fact, conclusions of law, and recommendations as to
these issues, separate and apart from any docket sheet notations.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f); 26.04(j)(2); 26.04(p); TEX. R.
APP. P. 25.2(f); Monreal, 99 S.W.3d at 616; Ward, 740 S.W.2d at 798; Lopez, 486 S.W.2d at
560; Moreno, 327 S.W.3d at 268–69; Fowler, 874 S.W.2d at 114.
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 trial court’s findings,
1 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.
recommendations, and orders with this Court within 20 days of the date of this order. The court
reporter is directed to file the reporter’s record of the hearing within 20 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 20 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 records that comply
with our order are 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/ Justice Harvey Brown
 Acting individually  Acting for the Court
Date: September 17, 2012