Kathleen G. Reyes v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
September 5, 2014
No. 04-14-00607-CR
Kathleen G. REYES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR5404
Honorable Melisa Skinner, Judge Presiding
ORDER
The trial court’s certification in this appeal states that “this criminal case is a plea-bargain
case, and the defendant has NO right of appeal.” The clerk’s record contains a judgment and
written plea papers showing that the defendant entered an “open plea” of nolo contendere
without an agreed recommendation for sentencing. When a defendant waives the right to appeal
before sentencing and without an agreed recommendation on punishment, the waiver is not valid.
Washington v. State, 363 S.W.3d 589, 589-90 (Tex. Crim. App. 2012); Ex parte Delaney, 207
S.W.3d 794, 799 (Tex. Crim. App. 2006) (when there is no recommended maximum punishment
at the time the defendant waives the right to appeal, the consequences of such waiver cannot be
known, and the waiver is not knowing and intelligent); see also Ex parte Broadway, 301 S.W.3d
694, 696 n. 3 (Tex. Crim. App. 2009) (primary advantage to entering open plea is a relatively
unlimited right to appeal). Therefore, the trial court certification does not accurately reflect that
the defendant has the right to appeal, and is thus defective. See TEX. R. APP. P. 25.2(a)(2); Dears
v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). Rule 25.2(d) of the Texas Rules of
Appellate Procedure requires the record to contain the trial court’s certification of the
defendant’s right of appeal under Rule 25.2(a)(2). TEX. R. APP. P. 25.2(d). It further provides,
“The appeal must be dismissed if a certification that shows the defendant has the right of appeal
has not been made part of the record under these rules.” Id.
Accordingly, the trial court is ORDERED to prepare and file an amended trial court
certification correcting the defect and showing that the defendant has the right to appeal, and the
trial court clerk is instructed to file a supplemental clerk’s record containing said amended trial
court certification in this Court within fifteen (15) days from the date of this order. TEX. R. APP.
P. 25.2(f), (d); 34.5(c); 37.1; see Dears, 154 S.W.3d at 614. All other appellate deadlines are
suspended pending resolution of the certification issue.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 5th day of September, 2014.
___________________________________
Keith E. Hottle
Clerk of Court