                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON

                                  ORDER OF ABATEMENT

Appellate case name:        Esseabasi Samuel Williams v. The State of Texas

Appellate case number:      01-15-00736-CR

Trial court case number:    1455285

Trial court:                263rd District Court of Harris County

        Appellant, Esseabasi Samuel Williams, timely filed his notice of appeal on July
30, 2015, from the judgment of conviction, signed on July 30, 2015, after he pleaded
guilty to the first-degree felony of engaging in organized criminal activity for which the
trial court assessed his punishment at thirty years’ confinement. The trial court’s
certification, included with the notice of appeal, states that this is not a plea-bargain case
and that appellant has the right of appeal.

        On September 3, 2015, appellant’s appointed counsel, Bob Wickoff, filed a letter-
motion with the Clerk of this Court stating that the certification is incorrect because the
clerk’s record reflects that appellant pleaded guilty without an agreed recommendation
with a cap of thirty years in prison after a presentencing investigation (“PSI”) was to be
completed. Appellant contends that, under Texas Rule of Appellate Procedure
25.2(a)(2), plea agreements with caps on punishment are treated as plea-bargain cases.
See Waters v. State, 124 S.W.3d 825, 826–27 (Tex. App.—Houston [14th Dist.] 2003,
pet. ref’d). Appellant’s counsel further states that, because appellant’s trial counsel filed
pretrial motions and obtained written rulings from the trial court, he may appeal only
matters raised by a written pretrial motion and denied by written order or else with the
trial court’s permission. See TEX. R. APP. P. 25.2(a)(2). Thus, appellant’s counsel
requests that this Court order the trial court to remedy the defect by filing an amended
certification of appellant’s right of appeal.

      Although the clerk’s record is not yet due to be filed in this Court until September
28, 2015, after examining the judgment of conviction from the trial clerk’s website, the
judgment does state that this was a plea-bargain case without an agreed recommendation
with a cap of thirty years after a PSI hearing. See Threadgill v. State, 120 S.W.3d 871,
872 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that agreement to
“punishment cap” was “plea-bargained case within the meaning of Rule 25.2(a)(2).”).
Thus, the certification of appellant’s right of appeal, signed on March 13, 2015, appears
to be inconsistent with the judgment, and an amended certification should have been
entered at the time the judgment was signed on July 30, 2015. See TEX. CODE CRIM.
PROC. ANN. § 44.02 (West Supp. 2014); TEX. R. APP. P. 25.2(a)(2) (“The trial court shall
enter a certification of the defendant’s right of appeal each time it enters a judgment of
guilt or other appealable order.”). This order constitutes notice to all parties of the defect.
See TEX. R. APP. P. 37.1.

       Accordingly, we construe appellant’s letter-motion to include a motion to abate
and remand and grant it, ABATE the appeal, and REMAND for the trial court to
immediately conduct a hearing at which a representative of the Harris County District
Attorney’s Office and appellant’s counsel, Bob Wicoff, shall be present. Appellant shall
also be present for the hearing in person or, if appellant is incarcerated, at the trial court’s
discretion, appellant may participate in the hearing by closed-circuit video
teleconferencing.1

       We direct the trial court to:
           1) execute an amended certification of appellant’s right to appeal, indicating
              whether this is a plea-bargain case and, if so, whether appellant has the
              limited right to appeal the denial of any pretrial motions or whether the trial
              court has given permission to appeal and appellant has the right of appeal,
              if any;
           2) make any findings and recommendations the trial court deems appropriate;
              and
           3) enter written findings of fact, conclusions of law, and recommendations as
              to these issues, if any, separate and apart from any docket sheet notations.
See TEX. GOV’T CODE ANN. § 52.046 (West Supp. 2014); TEX. R. APP. P. 13.1(a),
25.2(a)(2), (d), (f), 34.5(a)(12), (c)(2), 34.6(a)(1), (d), (e)(2), (3), (f), 35.3(b), (c), 37.1,
44.4(b). The trial court coordinator shall set a hearing date no later than 30 days from the
date of this order and notify the parties and the Clerk of this Court. The trial court shall
have a court reporter record the hearing and file a supplemental reporter’s record with
this Court within 15 days of the date of the hearing. If the hearing is conducted by video

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       Any such teleconference must use a closed-circuit video teleconferencing system that
       provides for a simultaneous compressed full motion video and interactive communication
       of image and sound between the trial court, appellant, and any attorneys representing the
       State or appellant. On appellant’s request, appellant and his counsel shall be able to
       communicate privately without being recorded or heard by the trial court or the attorney
       representing the State.

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teleconference, a certified video recording of the hearing shall also be filed in this Court
within 15 days of the date of this hearing.


       The trial court clerk is directed to file a supplemental clerk’s record containing the
amended certification of appellant’s right of appeal the judgment of conviction, including
any findings of fact or conclusions of law made by the trial court. The supplemental
clerk’s record shall be filed with this Court no later than 15 days from the date of the
hearing. See TEX. R. APP. P. 2, 34.5(c)(2).

       This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. This appeal will be reinstated on this Court’s active docket when the
supplemental clerk’s record and supplemental reporter’s record are filed with the Clerk of
this Court.

       It is so ORDERED.

Judge’s signature: /s/ Laura Carter Higley
                    Acting individually       Acting for the Court

Date: September 10, 2015




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