Rogelio Alberto Guarado v. State ( 2019 )

Abatement Order filed December 17, 2019
In The
Fourteenth Court of Appeals
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NO. 14-19-00760-CR
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ROGELIO ALBERTO GUARADO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1524175
ABATEMENT ORDER
Appellant Rogelio Alberto Guarardo appeals his conviction for aggravated
assault. The clerk’s record contains conflicting information about appellant’s right
to appeal. The record reflects appellant entered a negotiated plea of guilty under a
plea-bargain agreement. In exchange for appellant’s waiver of his right to appeal,
the State consented to appellant’s waiver of his right to jury trial. See Tex. Code
Crim. Proc. art. 1.13(a) (“The defendant in a criminal prosecution for any offense
other than a capital felony case in which the state notifies the court and the
defendant that it will seek the death penalty shall have the right, upon entering a
plea, to waive the right of trial by jury, conditioned, however, that, except as
provided by Article 27.19, the waiver must be made in person by the defendant in
writing in open court with the consent and approval of the court, and the attorney
representing the state.”) (emphasis added). Such a waiver is enforceable against a
defendant. See Jones v. State, 488 S.W.3d 801, 807–08 (Tex. Crim. App. 2016); Ex
parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009). The trial court
entered a written certification as required by Texas Rules of Appellate Procedure
25.2(a)(2) and 25.2(d). Tex. R. App. P. 25.2. The certification, signed by appellant,
reflects that “the defendant has waived the right of appeal.” We are therefore
required to dismiss this appeal unless we conclude the trial court’s certification is
defective. See Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005).
Although the record does not reflect the certification is defective, four
months after the certification, the trial court entered another certification that this
“is not a plea-bargain case, and the defendant has the right of appeal.” Thus, the
record presents conflicting information about appellant’s right to appeal.
We abate this appeal and remand the cause to the trial court for entry of an
amended certification clarifying appellant’s right of appeal. See Tex. R. App. P.
25.2(f). The Harris County District Clerk shall file a supplemental clerk’s record
containing the trial court’s amended certification with this court within thirty days
of the date of this order. See Tex. R. App. P. 25.2(d), 34.5(c)(2), 37.1.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.