Homer C. Tomerlin, III v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
February 27, 2018
No. 04-18-00081-CR
Homer C. TOMERLIN, III,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 16-1600-CR-C
Honorable Dwight E. Peschel, Judge Presiding
O RDE R
Rule 25.2(a) requires the trial court to enter a certification of the defendant’s right to
appeal each time it enters a judgment of guilt or other appealable order. TEX. R. APP. P. 25.2(a).
In a plea-bargain case—that is, a case in which a defendant’s plea was guilty or nolo contendere
and the punishment did not exceed the punishment recommended by the prosecutor and agreed
to by the defendant—a defendant may appeal only those matters that were raised by written
motion filed and ruled on before trial, or after getting the trial court’s permission to appeal. Id.
25.2(a)(2).
In this case, the clerk’s record has been filed. The clerk’s record contains the trial court’s
certification of defendant’s right of appeal which states that this “is a plea-bargain case, and the
defendant has NO right of appeal.” This court has a duty to determine whether the trial court’s
certification is defective in light of the record. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex.
Crim. App. 2005).
Here, the clerk’s record indicates that the appellant entered into a guilty plea without any
recommendation as to punishment. The clerk’s record contains a judgment showing appellant
pled guilty to multiple counts of indecency with a child by contact and the trial court assessed
punishment at twenty years’ imprisonment. The clerk’s record also contains a document titled
“Plea Agreement,” which states the appellant will plead guilty to the offenses of “Counts 7-18
Indecency with a Child”; the term of confinement is “Open”; and the State “waives/abandons
Counts 1-6, 19-41” and “reserves the right to request the indictments (16-1600-CR-C & 16-
1601-CR-C) be stacked and Defendant waives any objection to consecutive sentences.” Thus, the
clerk’s record appears to show this is not a plea bargain case under Rule 25.2 because the
punishment does not exceed the punishment recommended by the prosecutor and agreed to by
the defendant. See Dears, 154 S.W.3d at 613 (recognizing that nothing in Rule 25.2(a)(2) limited
the defendant’s right to appeal when she entered “open pleas of guilty”).
Based on the record before us, it appears that the trial court’s certification is defective.
We, therefore, abate this appeal and remand the case to the trial court either to (1) issue a new
certification, or (2) hold a hearing and issue findings of fact and conclusions of law explaining
whether (a) there was a plea agreement in this case; (b) whether that agreement, if any, affects
appellant’s ability to appeal his conviction or his sentence in this case; and (3) whether, if there
was a plea agreement, the trial court granted appellant permission to appeal.
We, therefore, ORDER the trial court either to issue a new certification correcting the
defect or to hold a hearing on or before March 29, 2018. We ORDER the trial court clerk to file
a supplemental clerk’s record containing a corrected certification or any findings of fact and
conclusions of law on or before April 13, 2018. We further ORDER the court reporter to file the
reporter’s record of any hearing held in response to this order on or before April 13, 2018.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 27th day of February, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court