Carlos Michael Lopez v. State ( 2019 )

Abatement Order filed August 20, 2019
In The
Fourteenth Court of Appeals
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NO. 14-19-00380-CR
NO. 14-19-00381-CR
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CARLOS MICHAEL LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1564443 and 1564444
ABATEMENT ORDER
The State has filed a motion to dismiss these appeals, contending appellant
waived his right to appeal in exchange for the State’s waiver of its right to a jury
trial. Appellant has responded that the appeals should not be dismissed because the
record contains no evidence of the parties bargained for the waiver other than the
State’s boilerplate language.
The trial court originally certified that appellant had waived his right to
appeal. We sent a letter to the trial court on June 27, 2019 stating the records suggest
appellant did not waive his right to appeal. In response, the trial court filed amended
certifications indicating that appellant both had the right to appeal and waived his
right to appeal.
The right to appeal may be waived, and such a waiver is valid if made
voluntarily, knowingly, and intelligently. Carson v. State, 559 S.W.3d 489, 492–93
(Tex. Crim. App. 2018); Ex parte Delaney, 207 S.W.3d 794, 796-97 (Tex. Crim.
App. 2006); Simon v. State, 554 S.W.3d 257, 261 (Tex. App.—Houston [14th Dist.]
2018, no pet.); Jenkins v. State, 495 S.W.3d 347, 350 (Tex. App.—Houston [14th
Dist.] 2016, no pet.). A waiver of appeal prior to sentencing may be valid if it is
bargained for—that is, if the State gives some consideration for the waiver, even if
a sentence is not agreed upon. Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim.
App. 2009); Simon, 554 S.W.3d at 261; Jenkins, 495 S.W.3d at 350. On the other
hand, a non-negotiated waiver of the right to appeal is valid only if the defendant
with certainty knows the punishment that will be assessed. Washington v. State, 363
S.W.3d 589, 589-90 (Tex. Crim. App. 2012) (per curiam); Delaney, 207 S.W.3d at
798-99; Simon, 554 S.W.3d at 261; Jenkins, 495 S.W.3d at 350.
We order as follows:
The judge of the 262nd District Court shall immediately conduct a hearing at
which appellant, appellant’s counsel, and counsel for the State shall participate,
either in person or by video teleconference, to make findings of fact as to whether
appellant’s waiver of his right to appeal is valid. The judge shall see that a record of
the hearing is made and shall order the trial clerk to forward a record of the hearing
and a supplemental clerk’s record containing the findings of fact. The transcribed
record of the hearing and the court’s findings shall be filed with the clerk of this
court on or before September 19, 2019.
We will hold the State’s motion to dismiss pending the filing of the requested
records.
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 without
further order of the court when the requested records are filed in this court. The court
will also consider an appropriate motion to reinstate the appeal filed by either party,
or the court may reinstate the appeal on its own motion. It is the responsibility of
any party seeking reinstatement to request a hearing date from the trial court and to
schedule a hearing in compliance with this court’s order. If the parties do not request
a hearing, the court coordinator of the trial court shall set a hearing date and notify
the parties of such date.
PER CURIAM