Robert William Moore v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00097-CR
Robert William Moore, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2006-105, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
MEMORANDUM OPINION
Robert William Moore timely filed a notice of appeal after the district court revoked
his deferred adjudication community supervision, convicted him of indecency with a child, and
imposed a 12-year sentence. The district court has certified that this is a plea-bargain case and
Moore has no right of appeal. Based on the district court’s certification, the State has filed a motion
to dismiss the appeal.
In a plea bargain for deferred adjudication, the bargain is complete when the
defendant enters his plea of guilty in exchange for deferred adjudication community supervision.
Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006). Appellate rule 25.2(a)(2)
restricts the defendant’s right of appeal from the deferred adjudication order, but does not restrict
the defendant’s right of appeal following a subsequent adjudication of guilt. Id.; Tex. R. App. P.
25.2(a)(2). This is the case even if the defendant pleaded “true” to the allegations in the motion to
adjudicate in exchange for an agreed punishment recommendation, because rule 25.2(a)(2) applies
only when the “defendant’s plea is guilty or nolo contendere.” Tex. R. App. P. 25.2(a)(2); see also
Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) (holding that plea bargain
recommendation is not binding on trial court at revocation hearing). After adjudication of guilt, the
defendant’s appeal is restricted only by article 42.12, section 5(b). Hargesheimer, 182 S.W.3d at
912; Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2006). We cannot determine from
the documents forwarded to this Court with the notice of appeal whether the plea bargain referenced
in the trial court’s certification was at the original trial or at the adjudication hearing, but, in either
event, it does not restrict Moore’s right of appeal following adjudication.
The appeal is abated. The district court is instructed to prepare and file an amended
certification reflecting that this is not a plea-bargain case, and the defendant has the right of appeal.
Hargesheimer, 182 S.W.3d at 913. A copy of the amended certification shall be forwarded to the
clerk of this Court no later than July 21, 2008.
____________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Abated
Filed: July 8, 2008
Do Not Publish
2