Carl Randle, Jr. v. State ( 2015 )

The State of
Fourth Court of Appeals
San Antonio, Texas
August 12, 2015
No. 04-15-00422-CR
Carl RANDLE, Jr.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR4661A
Honorable Mary D. Roman, Judge Presiding
ORDER
Appellant’s appointed appellate counsel, Michael Lee Young, Chief Public Defender,
filed a motion to withdraw as counsel. We granted the motion and ordered the appeal abated and
remanded to the trial court. See Duncan v. State, 653 S.W.2d 38, 40 (Tex. Crim. App. 1983)
(holding that appellate courts may abate appeals so that trial court can assure appellant has
effective assistance of counsel). We ordered the trial court to conduct a hearing and prepare
findings of fact and conclusions of law as to whether appellant is still indigent, and if so, who
should be appointed as appellant’s new appellate counsel.
In accordance with our order, the trial court held a hearing and thereafter prepared the
mandated findings and conclusions. The district clerk filed a supplemental clerk’s record
containing the trial court’s findings of facts and conclusions of law on August 11, 2015. 1 In its
findings and conclusion, the trial court determined appellant is still indigent and appointed
attorney Phyllis Beal as new appellate counsel for appellant.
Accordingly, we lift the abatement and ORDER the appeal reinstated on the docket of
this court. At the time of the abatement, the clerk’s record had been filed. The clerks’ record
establishes appellant entered into a plea bargain with the State, pursuant to which he pleaded
guilty to the offense of aggravated robbery (repeater).
1
We also ordered the court reporter to prepare a reporter’s record from the hearing and file it in this court. The
record has not yet been filed.
The trial court imposed sentence in accordance with the agreement and signed a
certificate stating this “is a plea-bargain case, and the defendant has NO right of appeal.” See
TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal. As noted above, the clerk’s
record, which includes the trial court’s rule 25.2(a)(2) certification and a written plea bargain
agreement, has been filed. See id. R. 25.2(d). This court must dismiss an appeal “if a
certification that shows the defendant has the right of appeal has not been made part of the
record.” Id.
The clerk’s record establishes the punishment assessed by the court does not exceed the
punishment recommended by the prosecutor and agreed to by the defendant. See id. R.
25.2(a)(2). The record also appears to support the trial court’s certification that ** does not have
a right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court
of appeals should review clerk’s record to determine whether trial court’s certification is
accurate).
Appellant is hereby given notice that this appeal will be dismissed pursuant to rule
25.2(d) of the Texas Rules of Appellate Procedure unless an amended certification showing that
appellant has the right to appeal is made part of the appellate record by SEPTEMBER 11, 2015.
See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio
2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref’d)
(mem. op., not designated for publication).
We order all appellate deadlines are suspended until further order of the court. We
further order the clerk of this court to serve copies of this order on the attorneys of record and
the court reporter responsible for preparing the reporter=s record in this appeal.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 12th day of August, 2015.
___________________________________
Keith E. Hottle
Clerk of Court