Gabriel, Alexander James v. State ( 2014 )

Order entered January 9, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01246-CR
ALEXANDER JAMES GABRIEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-81517-10
ORDER
The clerk’s record has been filed in this appeal, but the reporter’s record has not been
filed. Moreover, upon review of the clerk’s record, we question the accuracy of the trial court’s
certification of appellant’s right to appeal. Specifically, the certification states both that the case
involves a plea bargain and appellant has no right to appeal and that appellant waived his right to
appeal. However, the appeal is from the trial court’s judgment adjudicating guilty. The
provisions of rule 25.2(a) do not apply to plea bargains entered during adjudication hearings, and
a plea bargain at the time of the original guilty does not extend to the adjudication hearing. See
Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006); Dears v. State, 154
S.W.3d 610, 614–15 (Tex. Crim. App. 2005). Moreover, the record reflects that appellant
entered an open plea of true to the allegations in the motion to proceed with adjudication of guilt,
and nothing in the record before the Court indicates appellant waived his right to appeal after he
was aware of the punishment that would be assessed. See Ex parte Delaney, 207 S.W.3d 794,
799–800 (Tex. Crim. App. 2006). Therefore, it does not appear the certification of appellant’s
right to appeal accurately reflects the proceedings in this case.
Accordingly, the Court ORDERS the trial court to make findings of fact regarding
whether appellant has been deprived of the reporter’s record because of ineffective counsel,
indigence, or for any other reason.
 The trial court shall first determine whether appellant desires to prosecute the appeal. If
the trial court determines that appellant does not desire to prosecute the appeal, it shall
make a finding to that effect.
 If the trial court determines that appellant desires to prosecute the appeal, it shall next
determine whether appellant is indigent and entitled to proceed without payment of costs
for the reporter’s record. If appellant is entitled to proceed without payment of costs, the
trial court shall make a finding to that effect. Moreover, if appellant is indigent, the trial
court is ORDERED to take such measures as may be necessary to assure effective
representation, which may include appointment of new counsel. If the trial court finds
appellant is not indigent, it shall determine whether retained counsel has abandoned the
appeal.
 The trial court shall next determine: (1) the name and address of each court reporter who
recorded the proceedings in this cause; (2) the court reporter’s explanation for the delay
in filing the reporter’s record; and (3) the earliest date by which the reporter’s record can
be filed.
We ORDER the trial court to transmit a supplemental record, containing the written
findings of fact, any supporting documentation, and any orders, to this Court within THIRTY
DAYS of the date of this order.
We further ORDER that the supplemental clerk’s record containing a certification of
appellant’s right to appeal that accurately reflects the proceedings in the case.
The appeal is ABATED to allow the trial court to comply with this order. It shall be
reinstated thirty days from the date of this order or when the supplemental record is received,
whichever is earlier.
/s/ LANA MYERS
JUSTICE