Eli Blue Hernandez v. State ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00255-CR
Eli Blue Hernandez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-10-206973, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
PER CURIAM
Appellant Eli Blue Hernandez pleaded guilty to the offense of possession of a
controlled substance, cocaine, and the district court placed him on deferred-adjudication community
supervision for a period of eight years. Subsequently, the State filed a motion to proceed with an
adjudication of guilt, based, in part, on an allegation that Hernandez had committed the subsequent
criminal offense of possession of a controlled substance.1 Hernandez pleaded true to the allegations
in the motion to adjudicate and was sentenced to five years’ imprisonment. This appeal followed.
The rules of appellate procedure provide, “The trial court shall enter a certification
of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order.”
Tex. R. App. P. 25.2(a)(2). We are required “to examine a certification for defectiveness, and to
use Rules 37.1 and 34.5(c) to obtain another certification, whenever appropriate.” Dears v. State,
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Hernandez was also indicted for the subsequent criminal offense, which was separately
docketed under trial court cause number D-1-DC-13-200700 and appellate cause number 03-13-
00256-CR.
154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (citing Tex. R. App. P. 37.1, 34.5(c)). A defective
certification is one “which is correct in form but which, when compared with the record before the
court, proves to be inaccurate.” Id.
The certification in this cause indicates that this is a plea-bargain case, the defendant
has no right of appeal, and the defendant has waived the right of appeal. This certification does not
appear to conform to the record. A plea-bargain case is defined as one 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. Tex. R. App. P. 25.2(a)(2). Here, Hernandez
did not plead guilty or nolo contendere. Instead, he pleaded true to the allegations in the State’s
motion to adjudicate. See Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006)
(holding that case in which defendant pleads true to allegations in motion to adjudicate is not
considered plea-bargain case for purposes of rule 25.2(a)(2)); see also Dears, 154 S.W.3d at 613
(“[Rule 25.2(a)(2)] refers only to plea bargains with regard to guilty pleas, not pleas of true on
revocation motions.”).
In light of the apparent discrepancy between the certification and the record, we abate
the appeal and remand the cause to the district court for entry of an amended certification addressing
Hernandez’s right of appeal from the judgment adjudicating guilt. Once entered, the certification
shall be included in a supplemental clerk’s record and filed with this Court no later than July 1, 2013.
Before Justices Puryear, Pemberton and Rose
Abated
Filed: June 21, 2013
Do Not Publish
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