Uchechukwu Diogu Ukariwe v. State ( 2020 )

Order entered March 30, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00950-CR
UCHECHUKWU DIOGU UKARIWE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1776605-Q
ORDER
Before Justices Partida-Kipness, Nowell, and Evans
On July 19, 2018, appellant Uchechukwu Diogu Ukariwe entered a plea of
guilty on the charge of first degree felony aggravated robbery. In accordance with
the terms of the plea bargain, the trial court deferred adjudication of guilt, entered
an order of deferred adjudication that included a deadly weapon finding, and
sentenced appellant to seven years’ community supervision. Subsequently, the
State moved to revoke probation or proceed with adjudication of guilt, alleging
appellant committed multiple violations of his community supervision. At the
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hearing on the motion, appellant waived presentation of the motion and entered a
plea of true to all but one of the allegations, which the State withdrew. The trial
court accepted appellant’s plea of true, granted the State’s motion, found appellant
guilty of aggravated robbery with a deadly weapon and, pursuant to a plea
agreement, sentenced appellant to five years’ imprisonment in the Texas
Department of Criminal Justice. The trial court also made an affirmative finding
that the deadly weapon was a firearm. Thereafter, the trial court issued a nunc pro
tunc order that corrected the judgment to reflect that appellant was convicted of
aggravated robbery first degree felony under article 29.03 of the penal code.
Appellant now appeals the revocation of his community supervision.
This case was submitted without oral argument to the above-referenced
panel of justices on March 25, 2020. Upon review of the record in preparation for
submission, the panel discovered that the Trial Court’s Certification of Defendant’s
Right of Appeal contained in the clerk’s record is defective. First, the certification
is not signed by appellant as required by Rule 25.2(d) of the Texas Rules of
Appellate Procedure. The case must, therefore, be abated and remanded to the trial
court for further proceedings.
Second, the certification erroneously states that the case “is a plea-bargain
case, and defendant has NO right of appeal.” Because appellant appealed from a
plea of true to a revocation motion, he did not attempt to appeal from a plea-
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bargained case, and the certification of his right of appeal was defective. See
Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (holding that
Rule of Appellate Procedure 25.2(a)(2) will restrict appeal when appellant appeals
placement on deferred adjudication community supervision pursuant to original
plea bargain, but will not restrict appeal from proceeding on motion to adjudicate
guilt); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005) (holding that
Rule 25.2(a)(2) “refers only to plea bargains with regard to guilty pleas, not pleas
of true on revocation motions” and “[n]othing in Rule 25.2(a)(2) limits
[appellant's] right to appeal”); Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim.
App. 2003) (“[I]n the context of revocation proceedings, the legislature has not
authorized binding plea agreements.”). We conclude that the certification stating
that the case was a plea bargain case and, as such, appellant has no right of appeal
is erroneous, and we order the trial court to amend the certification to conform to
the record.
We will not address the Anders brief filed by appellant’s court-appointed
attorney until we receive an amended certification from the trial court and
determine that we have jurisdiction over the appeal. See Wilkerson v. State, 264
S.W.3d 102, 103–04 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (appellate
court ordered trial court to amend defective certification because appellant had a
right of appeal where plea agreement concerned revocation of deferred
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adjudication or community supervision); see also McGaha v. State, No. 01-13-
00031-CR, 2013 WL 2106486, at *1 (Tex. App.—Houston [1st Dist.] May 14,
2013, no pet.) (noting appeal was previously abated and remanded for execution of
amended certification under analogous facts).
Accordingly, we ABATE this appeal and REMAND this cause to the trial
court for further proceedings. We ORDER the trial court to conduct all necessary
proceedings to secure a proper, amended Trial Court’s Certification of Defendant’s
Right of Appeal that will conform to the record and comply with rule 25.2(d) of
the rules of appellate procedure. Once properly completed and executed, the
certification shall be included in a supplemental clerk’s record. See TEX. R. APP. P.
34.5(a)(12). We ORDER the trial court to cause the supplemental clerk’s record to
be filed with the Clerk of this Court by April 30, 2020. This order constitutes
notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate
Procedure, of the defective certification. If a supplemental clerk’s record
containing a proper certification is not filed in accordance with this Order, this
cause will be reinstated and resubmitted to the above-referenced panel for
dismissal. See TEX. R. APP. P. 25.2(d).
/s/ ROBBIE PARTIDA-KIPNESS
PRESIDING JUSTICE
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