Order entered October 9, 2019




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-19-00990-CR

                             DAVID LEE RICKERSON, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 194th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F18-76037-M

                                             ORDER
       Appellant has filed a September 5, 2019 motion for the Court to determine whether it has

jurisdiction over the appeal. The State has filed a response and appellant has filed a reply

addressing the State’s response.

       In his motion, appellant reports he was originally charged with capital murder. A plea

agreement was signed showing appellant agreed to plead guilty to murder on an open plea to the

jury. Appellant was convicted and sentenced to imprisonment for life.

       The trial court initially prepared a certification of the right to appeal showing there was

no plea bargain and appellant had a right to appeal. Appellant filed his notice of appeal and

appellate counsel was appointed to represent him. Appellate counsel represents in the motion

that he learned from trial counsel that, prior to trial, appellant agreed with the State to waive his
right to appeal in exchange for the State agreeing to drop the capital murder charge and proceed

to a jury on the open plea to a murder charge.

         According to appellate counsel, on August 23, 2019, an informal hearing occurred to

address the plea agreement issue.        The hearing was not recorded and the only written

documentation of its result are a docket sheet entry from the trial court judge stating appellant

had acknowledged he waived his right to appeal in exchange for the State reducing the capital

murder charge to murder and an email from the trial court coordinator relaying the trial court

judge’s recollection to appellate counsel.

         Appellant contends that his waiver of the right to appeal could not have been voluntarily,

knowingly, and intelligently made because it was made pretrial and thus he could not know in

advance what errors would occur during his pending trial proceeding. Appellant questions

whether the waiver of such a critical right should be enforceable if it was not reduced to writing

and was not discussed in open court so as to ensure appellant’s understanding of the rights he

was waiving. Appellant contends that under the unusual circumstances of this case, it would be

inequitable to allow the waiver to foreclose his appeal as to the punishment phase of trial.

Appellant challenges the adequacy of the State’s consideration for the waiver.            The State

contends appellant received sufficient consideration for the waiver of his right to appeal and the

existence of the waiver is confirmed by the trial court’s memorialization of it in the docket sheet.

         There is no record before the Court other than what the parties have attached as exhibits

to the motion and response. To aid the Court in resolving appellant’s motion, we ORDER the

Dallas County District Clerk to file the clerk’s record within FIFTEEN DAYS of the date of this

order.




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       There being no reporter’s record of the informal hearing in which appellant stated to the

trial court that he waived his right to appeal, we          ORDER the trial court to conduct an

evidentiary hearing and prepare findings of fact and conclusions of law regarding (1) whether

appellant and the State entered into a plea bargain agreement in which appellant agreed to waive

his right to appeal in exchange for consideration from the State; (2) whether any such agreement

between appellant and the State was reduced to writing; (3) the terms of any such agreement; (4)

whether appellant entered the agreement knowingly, intelligently, and voluntarily; and (5) the

State’s motivations and consideration for any agreement with appellant.

       We further ORDER the trial court to transmit, within THIRTY DAYS of the date of this

order, a supplemental clerk’s record containing a copy of the trial court’s findings of fact and

conclusions of law and a supplemental reporter’s record of the evidentiary hearing.

       We ABATE the appeal to allow the trial court to conduct the hearing as ordered above.

The appeal will be reinstated when the supplemental clerk’s record containing the trial court’s

findings is received or at such other time as the Court deems appropriate.

       Upon reinstatement of the appeal, the Court will determine whether it has jurisdiction.

       We DIRECT the Clerk of the Court to transmit a copy of this order, by electronic

transmission to the Honorable Ernest White, Presiding Judge, 194th Judicial District Court; to

Belinda Baraka, official court reporter, 194th Judicial District Court; to Felicia Pitre, Dallas

County District Clerk; and to counsel for the parties.




                                                      /s/      LANA MYERS
                                                               JUSTICE



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