Byron Keith Booker v. State ( 2015 )

Order entered July 31, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00621-CR
BYRON KEITH BOOKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-58130-U
ORDER
By letter dated May 19, 2015, the Court notified the trial court that it questioned the
accuracy of the certification of appellant’s right to appeal. Specifically, we noted that the
certification states the case involves a plea bargain and appellant has no right to appeal. The
record before the Court, however, reflects that the appeal is from the trial court’s judgment
adjudicating guilt. Although there was a plea agreement during the adjudication proceeding, the
restrictions of rule 25.2(a)(2) regarding plea bargains do not apply to plea bargain agreements
that take place at the hearing on the motion to adjudicate guilt. See Dears v. State, 154 S.W.3d
610 (Tex. Crim. App. 2005). Moreover, nothing in the plea agreement form reflects appellant
waived his right to appeal as part of the agreement. Because it appeared the statements in the
certification were not supported by the record, we asked the trial court to file an amended
certification within ten days that accurately reflects the trial court proceedings. To date, the trial
court has not filed an amended certification of appellant’s right to appeal.
Additionally, the reporter’s record is overdue in this appeal. Accordingly, we ORDER
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 further ORDER the trial court to prepare an amended certification of appellant’s
right to appeal that accurately reflects the trial court proceedings regarding the motion to
adjudicate guilt.
We ORDER the trial court to transmit a 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 ORDER that the supplemental record contain the trial court’s amended
certification of appellant’s right to appeal.
We DIRECT the Clerk to send copies of this order to the Honorable Stephanie Mitchell,
Presiding Judge, 291st Judicial District Court, and to counsel for all parties.
The appeal is ABATED to allow the trial court to comply with this order. The appeal
shall be reinstated thirty days from the date of this order or when the findings are received,
whichever is earlier.
/s/ LANA MYERS
JUSTICE