Victor Antonio Sanchez v. State ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Victor Antonio Sanchez v. The State of Texas
Appellate case number: 01-15-00609-CR
Trial court case number: 1458825
Trial court: 230th District Court of Harris County
This is an appeal from a conviction for murder. Appellant pleaded guilty to the offense
of murder in exchange for the State’s recommendation that sentencing be capped at 40 years
imprisonment in the Institutional Division of the Texas Department of Criminal Justice (TDCJ-
ID). The trial court accepted this plea and, after a hearing, sentenced appellant to 28 years in
TDCJ-ID. The trial court entered a certification that this is not a plea bargain case and appellant
has the right of appeal.
An agreement to a recommended cap on punishment constitutes a plea bargain. See
Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003; Wilson v. State, 264 S.W.3d
104, 108 (Tex. App.—Houston [1st Dist.] 2007, no pet). Thus, the certification that this is
not a plea bargain may be in error.
The Rules of Appellate Procedure require us to dismiss an appeal unless a
certification showing that the appellant has the right to appeal has been made part of the
record. See TEX. R. APP. P. 25.2(a)(2). The rules also provide that an amended trial
court’s certification of the defendant’s right to appeal correcting a defect or omission may
be filed in the appellate court. See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1. Further, when
we have a record, we are obligated to review the record to ascertain whether the
certification is defective and, if it is defective, we must use Rules 37.1 and 34.5(c) to
obtain a correct certification. Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App.
2005); see TEX. R. APP. P. 34.5(c), 37.1.
Accordingly, we abate this appeal and remand to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing within 20 days of the
date of this order at which a representative of the Harris County District Attorney’s
Office and appellant’s appointed counsel shall be present. Appellant shall also be present
for the hearing in person or, if appellant is incarcerated, at the trial court’s discretion,
appellant may participate in the hearing by use of a closed-circuit video teleconferencing
system that provides for a simultaneous compressed full motion video and interactive
communication of image and sound.1
We direct the trial court to:
1) make a finding regarding whether or not appellant has the right to appeal;
2) if necessary, execute an amended certification of appellant’s right to appeal;
3) make any other findings and recommendations the trial court deems
appropriate; and
4) enter written findings of fact, conclusions of law, and recommendations as
appropriate, separate and apart from any docket sheet notations.
The trial court shall have a court reporter, or court recorder, record the hearing.
The trial court clerk is directed to file supplemental clerk’s records containing the trial
court’s findings, recommendations, and orders with this Court within 25 days of the
date of this order. The court reporter is directed to file the reporter’s record of the
hearing within 25 days of the date of this order. If the hearing is conducted by video
teleconference, a certified recording of the hearing shall also be filed in this Court within
25 days of the date of this order.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
 Acting individually
Date: April 21, 2016
1 On request of appellant, appellant and his counsel shall be able to communicate privately
without being recorded or heard by the trial court or the attorney representing the State.