David Wayne Kerr v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-19-00338-CR
________________________
DAVID WAYNE KERR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 21,768-B (Counts I & II); Honorable John B. Board, Presiding
October 28, 2019
ABATEMENT AND REMAND
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Pursuant to a plea bargain agreement, Appellant, David Wayne Kerr, was placed
on deferred adjudication community supervision for two counts of aggravated sexual
assault of a child.1 The trial court later adjudicated Appellant guilty of the offenses and
1 TEX. PENAL CODE ANN. § 22.021 (West 2019).
sentenced him to seventy-five years confinement for each count. Appellant appeals his
adjudication of guilt and sentencing.2
The trial court’s certification of Appellant’s right of appeal reflects that this is a plea-
bargain case with no right of appeal and that Appellant has waived the right of appeal.3
TEX. R. APP. P. 25.2(a)(2), (d). However, the certification is not supported by the record.
Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005) (requiring appellate
courts to determine whether a certification comports with the record). In a plea-bargain
case for deferred adjudication, the plea bargain is complete at the time 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). Thus, the plea
bargain does not deprive the defendant of the right to appeal from a later proceeding on
a motion to adjudicate guilt. Id.
Because the certification of Appellant’s right of appeal appears defective, we abate
the appeal and remand the cause to the trial court to prepare an amended certification
consistent with the record. TEX. R. APP. P. 25.2(f). The trial court shall utilize reasonable
means to secure Appellant’s signature on the amended certification. TEX. R. APP. P.
2 The trial court originally adjudicated Appellant guilty in 2013. We reversed the judgments on
appeal, however, and remanded the causes for a new hearing on the State’s motion to proceed with
adjudication. Kerr v. State, Nos. 07-13-00128-CR, 07-13-00380-CR, 2014 Tex. App. LEXIS 12850, at *10
(Tex. App.—Amarillo Nov. 25, 2014, no pet.) (mem. op) (not designated for publication). On remand, in
2015, Appellant was again adjudicated guilty of the offenses but did not immediately appeal from the
proceeding. In 2019, Appellant was granted an out-of-time appeal by the Court of Criminal Appeals and
filed the present appeal. Ex parte Kerr, No. WR-82,679-02, 2019 Tex. Crim. App. Unpub. LEXIS 547, at
*1-2 (Tex. Crim. App. Sept. 25, 2019) (per curiam).
3 The certification was filed on November 25, 2015, but was not signed or dated by the trial court.
2
25.2(d). The amended certification shall be included in a clerk’s record filed with this court
by December 2, 2019.
It is so ordered.
Per Curiam
Do not publish.
3