Ricardo Saldana v. State ( 2021 )

Abatement Order filed April 9, 2021.
In The
Fourteenth Court of Appeals
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NO. 14-20-00844-CR
NO. 14-20-00845-CR
NO. 14-20-00846-CR
NO. 14-20-00847-CR
NO. 14-20-00848-CR
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RICARDO SALDANA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause Nos. 1623964, 1623965, 1623966, 1623967, and 1623968
CORRECTED ABATEMENT ORDER
Appellant has filed a notice of appeal in each of these cases. In each case,
the record shows that defendant pleaded guilty without an agreed recommendation
as to sentencing. The right to appeal may be waived, and such a waiver is valid if
made voluntarily, knowingly, and intelligently. Ex parte Delaney, 207 S.W.3d 794,
796-97 (Tex. Crim. App. 2006); 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. Jenkins, 495 S.W.3d at 350; see
also Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009). In each
case, the plea papers recite that in exchange for appellant’s waiver of his right to
appeal, the State consented to appellant’s waiver of his right to jury trial. It has
been held that such a waiver is valid if there was some consideration. See Jones v.
State, 488 S.W.3d 801, 807–08 (Tex. Crim. App. 2016); Ex parte Broadway, 301
S.W.3d at 699. The plea papers in each case state that appellant’s waiver was in
exchange for appellant being able to request his punishment be set by the trial
court. The record reflects appellant’s punishment was assessed by the trial court.
Thus, the record in each case reflects we lack jurisdiction over this appeal because
appellant waived the right of appeal. See Ex parte Broadway, 301 S.W.3d at 699.
However, in each case, the trial court’s certification of defendant’s right of
appeal was amended from the initial certification that the case “[i]s a plea-bargain
case, and the defendant has NO right of appeal” to “[i]s not a plea-bargain case,
and the defendant has the right of appeal. Accordingly, we order as follows:
The judge of the 351st District Court is directed to make findings of fact and
conclusions of law on appellant’s right to appeal in each case and shall direct the
trial court clerk to prepare, certify, and file a supplemental clerk’s record
containing those findings and conclusions filed with the clerk of this court. If
necessary, the judge shall conduct a hearing, at which appellant, appellant’s
counsel, and state’s counsel shall participate, either in person or by video
teleconference. The judge shall see that a record of any hearing is made and shall
order the reporter to prepare, certify, and file a reporter’s record of the hearing,
including a videotape or compact disc, if any, containing a recording of the video
teleconference, to the clerk of this court. Those records shall be filed with the
clerk of this court on or before April 20, 2021.
If necessary, the judge shall correct the certification of the defendant’s right
of appeal in each case, request the trial court clerk to prepare and certify a
supplemental clerk’s record containing the corrected certifications, and file the
supplemental clerk’s record with this court on or before April 20, 2021.
The appeals are abated, treated as closed cases, and removed from this
Court’s active docket. The appeals will be reinstated on this Court’s active docket
when the trial court’s findings and conclusions and, if appropriate, corrected
certifications are filed in this Court. The Court will also consider an appropriate
motion to reinstate the appeals filed by either party.
PER CURIAM
Panel Consists of Chief Justice Christopher and Justices Spain and Wilson.