Rebecca Goerdel v. State ( 2019 )

Order entered July 29, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00389-CR
REBECCA GOERDEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F17-30578-V
ORDER
After reviewing the record in this appeal, the Court has questions concerning its
jurisdiction. Specifically, the record shows appellant entered into a plea bargain agreement with
the State. The March 22, 2019 written plea agreement shows appellant agreed to plead guilty
and waive her right to appeal in exchange for an agreed ten-year sentence, probated for nine
years. The reporter’s record reflects the trial court admonished appellant she was waiving her
right to appeal by pleading guilty and that she would not be able to appeal if the trial court
followed the terms of the plea bargain. When asked if she understood, appellant replied “Yes,
sir.” Nevertheless, the clerk’s record contains a March 28, 2019 certification of appellant’s right
to appeal and an April 1, 2019 certification of appellant’s right to appeal, each of which states
this “is a plea-bargain case, but the trial court has given permission to appeal, and the defendant
has the right to appeal.” It is not clear from the record that the trial court gave appellant
permission to appeal. Because we are faced with a conflicting record concerning our
jurisdiction, we will abate this appeal for the trial court to clarify whether (1) appellant waived
her right to appeal under a plea bargain agreement with the State, or (2) although appellant
waived her right of appeal in a plea bargain agreement with the State, the trial court gave
appellant permission to appeal and appellant has the right of appeal. Cf. Taylor v. State, 247
S.W.3d 223, 224 (Tex Crim. App. 2008) (the appellate court should abate for the trial court to
clarify whether it intended to grant a motion for new trial or an appeal).
We ORDER the Honorable Brandon Birmingham, Presiding Judge, 292nd Judicial
District Court, to issue, on or before AUGUST 16, 2019, either (1) an amended certification of
appellant’s right to appeal that accurately reflects the trial court proceedings, or (2) written
findings explaining why appellant has permission to appeal despite the record showing she does
not. If necessary, the judge may review the reporter’s record or clerk’s record to refresh his
recollection of the proceedings. See Wicker v. State, 740 S.W.2d 779, 784 (Tex. Crim. App.
1987).
We ORDER Dallas County Clerk Felicia Pitre to file a supplemental clerk’s record
containing the trial court’s amended certification of appellant’s right to appeal on or before
AUGUST 23, 2019.
We DIRECT the Clerk of this Court to send a copy of this order to the Honorable
Brandon Birmingham, Presiding Judge, 292nd Judicial District Court; Dallas County Clerk
Felicia Pitre; and counsel for the parties.
We ABATE the appeal to allow the trial court an opportunity to comply with this order.
It shall be reinstated when the supplemental clerk’s record is filed or by August 26, 2019,
whichever is earlier.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE