Elton Davis III v. State ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00475-CR
____________________
ELTON DAVIS III, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 99119
__________________________________________________________________
ORDER
Pursuant to a plea bargain agreement, appellant Elton Davis III pleaded
guilty to possession of a controlled substance, and the trial court placed Davis on
deferred adjudication community supervision for three years. The State
subsequently filed a motion to revoke Davis’s deferred adjudication community
supervision, and Davis pleaded “true” to one violation of the terms of his
community supervision. The trial court signed a judgment adjudicating guilt, in
which it sentenced Davis to five years of confinement, but suspended the sentence
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and placed Davis on community supervision for five years. On June 12, 2013, the
State filed a motion to revoke Davis’s community supervision. Davis pleaded
“true” to two violations of the terms of his community supervision. Davis and the
State entered into an “Agreed Punishment Recommendation” that provided
prosecution would proceed only on counts two, three, and four of the motion to
revoke. The trial court signed a judgment that revoked Davis’s community
supervision and sentenced Davis to five years of confinement.
The trial court signed a certification stating that this is a plea bargain case
and Davis has no right of appeal. “[I]n the context of revocation proceedings, the
legislature has not authorized binding plea agreements. . . .” Gutierrez v. State, 108
S.W.3d 304, 309 (Tex. Crim. App. 2003). Because this case involves a purported
plea-bargain agreement in a revocation proceeding, the record does not support the
trial court’s certification that Davis does not have the right to appeal. See Dears v.
State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005) (“[A]n appellate court has
the ability to examine a certification for defectiveness, and to use Rules 37.1 and
34.5(c) to obtain another certification, whenever appropriate. . . . If the court
chooses to examine a certification after the record is filed, it has the ability to
compare the certification to the record and . . . a duty to do so.”).
We abate the appeal and remand the case to the trial court to reevaluate its
certification of Davis’s right to appeal, appoint appellate counsel to represent
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Davis, and file a supplemental clerk’s record by March 3, 2014. See Tex. R. App.
P. 34.5(c), 37.1.
ORDER ENTERED January 30, 2014.
PER CURIAM
Before McKeithen, C.J., Kreger and Johnson, JJ.
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