Darion Amos v. State ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Darion Amos v. The State of Texas
Appellate case number: 01-15-00980-CR
Trial court case number: 1408362
Trial court: 178th District Court of Harris County
Appellant, Darion Amos, pleaded guilty, without an agreed punishment recommendation,
to the felony offense of aggravated robbery—over 65 or disabled. See TEX. PENAL CODE ANN.
§ 29.02(a)(3)(A) (West 2011). The trial court assessed punishment at confinement for sixteen
years. Appellant timely filed a notice of appeal.
The Clerk of this Court has examined the clerk’s record and has found that the
certification of defendant’s right to appeal may be defective. On February 18, 2015, the trial
court executed a certification of appellant’s right to appeal, stating that “the defendant has
waived the right of appeal.” However, the record does not support a waiver. The clerk’s record
contains no documents establishing a bargained-for waiver, and the documents filed in this
appeal do not support an oral waiver after appellant was sentenced on October 30, 2015.1 See Ex
parte Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009); Washington v. State, 363
S.W.3d 589, 589 (citing Ex parte Delaney, 207 S.W.3d 794, 797 (Tex. Crim. App. 2006));
Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).
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).
1 A reporter’s record has not yet been filed in this appeal. See TEX. R. APP. P. 34.1, 34.6(b).
However, appellant has included a copy of the hearing transcript of the October 30, 3015
sentencing hearing as an appendix to his brief. That hearing transcript does not reflect an
oral waiver of appeal after appellant was sentenced.
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, Quinon Brooker, 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. Execute an amended certification of appellant’s right to appeal indicating whether
or not appellant has the right to appeal; and
2. Make any other findings and recommendations the trial court deems appropriate.
See TEX. R. APP. P. 25.2(a)(2), (d), (f), 34.5(a)(12), (c)(2), 37.1.
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 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
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 28, 2016
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.