Burton Lamar Turner v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Burton Lamar Turner v. The State of Texas
Appellate case number: 01-15-00859-CR
Trial court case number: 1455210
Trial court: 337th District Court of Harris County
Appellant, Burton Lamar Turner, pled guilty, without an agreed recommendation as to
punishment, to the offense of harassment of a public servant. The trial court conducted a
punishment hearing, found Turner guilty of harassment of a public servant, and assessed
punishment at 10 years confinement. Before signing the judgment of conviction, the trial court
executed a certification of Turner’s right to appeal, stating that this “is a plea-bargain case, and
the defendant has NO right of appeal.” Turner, acting pro se, has filed a notice of appeal.
The trial court’s certification of appellant’s right to appeal is defective. The certification
states that this is a plea-bargain case, but the record contradicts the certification. See TEX. R.
APP. P. 25.2(a)(2) (stating plea-bargain case is “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”); see also Breazeale v. State, 683 S.W.3d 446, 450
(Tex. Crim. App. 1984) (holding that recitations in trial court records are binding unless record
contradicts them). Although he pleaded guilty, the record reflects that Turner pled guilty without
an agreed recommendation as to punishment. Accordingly, this case is not a plea-bargain case.
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 when we determine that an
appellant has a right of appeal. See TEX. R. APP. P. 25.2(f), 34.5(c)(2), 37.1, 44.4; see also Dears
v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
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, if any, 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.1
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 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 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/ Harvey Brown
 Acting individually  Acting for the Court
Date: December 10, 2015
1
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.