Sacajawea Warren v. State ( 2012 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Style: Sacajawea Warren v. The State of Texas
Appellate case number: 01-12-00649-CR
Trial court: 338th District Court, Harris County, Texas
Trial court case number: 1301748
The Texas Rules of Appellate Procedure require the trial court to enter a
certification of the defendant’s right of appeal in every criminal case in which the trial
court enters a judgment of guilt or other appealable order. TEX. R. APP. P. 25.2(a)(2).
Generally, unless a certification showing that the defendant has the right to appeal has been
made part of the record, we must dismiss the appeal. See TEX. R. APP. P. 25.2(d). Rule
44.4, however, prohibits dismissal of an appeal based on a remediable error and requires
this Court to direct the trial court to correct such error. See TEX. R. APP. P. 44.4; Dears v.
State, 154 S.W.3d 610, 614–15 (Tex. Crim. App. 2005) (holding that intermediate court
should have determined that certifications were defective and acted to have them
corrected).
The trial court’s certification of the appellant’s right to appeal in the
above-referenced case is not supported by the record. The record reflects that appellant
pleaded guilty without an agreed recommendation regarding punishment. The certification
states that appellant waived the right of appeal. The clerk’s record contains an executed
waiver form; however, the record reflects that it was executed prior to sentencing and
nothing in the record before us reflects that the waiver was given in exchange for
consideration from the State. See Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim.
App. 2009) (holding that defendant may validly execute presentencing waiver if State
gives consideration for waiver); Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App.
2000) (holding that pretrial waiver of appeal is valid when made in exchange for
sentencing recommendation from State); Delatorre v. State, 957 S.W.2d 145, 149 (Tex.
App.—Austin 1997, pet. ref’d) (“A written or oral waiver prevents a defendant from
appealing as long as the waiver was made knowingly and intelligently and with certainty as
to what punishment would be assessed.”).
Accordingly, we abate the appeal and remand the cause to the trial court. The trial
court is directed to prepare an amended certification of appellant=s right of appeal. See TEX.
R. APP. P. 25.2(f), 34.5(c), 37.1; Dears, 154 S.W.3d at 614–15 (providing for amendment
of certification to correct defect or omission, including defect in notification of defendant’s
appellate rights). We further order the district clerk to include the trial court’s
certification in a supplemental clerk’s record and to file the record in this Court no later
than December 27, 2012. See TEX. R. APP. P. 34.5(c).
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when a record that
complies with this order is filed with the Clerk of this Court.
Appellant’s motion to direct the trial court to amend the certification is granted.
Appellant’s motion for extension of time to file a brief is dismissed. Appellant’s brief is
due 30 days after the appeal is reinstated.
It is so ORDERED.
Judge’s signature: /s/ Justice Higley
 Acting individually Q Acting for the Court
Date: December 6, 2012
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