                               COURT OF APPEALS FOR THE
                          FIRST DISTRICT OF TEXAS AT HOUSTON

                                             ORDER

Appellate case name:          Jamal Joyner v. The State of Texas

Appellate case number:        01-16-00775-CR

Trial court case number:      1358039

Trial court:                  276th District Court of Harris County

       The State has filed a motion to abate for the trial court to issue a corrected
Certification of Defendant’s Right to Appeal. For the reasons below, the motion is granted.
       Appellant, Jamal Joyner, was charged with capital murder but, in accordance with
an agreement with the State, pleaded guilty to a reduced charge of aggravated robbery with
a single enhancement. As a result of this agreement, Joyner’s sentence exposure was
reduced from life without parole or death to a range of 15 years to life. See TEX. PENAL
CODE § 12.31 (range for capital murder); TEX. PENAL CODE § 12.42(c)(1) (range for a first-
degree with a prior felony). Although the agreement was without an agreed
recommendation as to punishment, the State agreed that it would recommend a 50-year
sentence were Joyner to testify truthfully if called as a witness in his co-defendants’ trials.
Ultimately, the State did not recommend a 50-year sentence, asserting that Joyner failed to
cooperate in his co-defendants’ trials. Joyner was sentenced to 60-years’ confinement for
the offense of aggravated robbery with one enhancement.
        The trial court’s certification of Joyner’s right to appeal states that this is not a plea-
bargain case and that he has the right to appeal. But, despite the State not recommending a
punishment, an agreement to plead guilty to a lesser or related offense is a type of plea
bargain called a charge bargain. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim.
App. 2003). A charge bargain “effectively puts a cap on punishment,” and is a bargain
governed by Texas Rule of Appellate Procedure 25.2(a)(2). Id. at 812-13. Here, Joyner was
charged with capital murder, which carries a punishment range of life imprisonment
without parole or death. See TEX. PENAL CODE § 12.31. By allowing Joyner to plead guilty
to the lesser charge of aggravated robbery with one enhancement, the range of punishment
was reduced to 15 years’ to life imprisonment. TEX. PENAL CODE § 12.42(c)(1).
        The Rules of Appellate Procedure require us to dismiss an appeal unless a
certification showing that the appellant has the right to appeal has been made part of the
record. See TEX. R. APP. P. 25.2(a)(2). The rules also provide that an amended trial court’s
certification of the defendant’s right to appeal correcting a defect or omission may be filed
in the appellate court. See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1. Further, when we have a
record, we are obligated to review the record to ascertain whether the certification is
defective and, if it is defective, we must use Rules 37.1 and 34.5(c) to obtain a correct
certification. Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App. 2005); see TEX.
R. APP. P. 34.5(c), 37.1.
        Accordingly, we abate this appeal and remand the cause to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing within 20 days of the date
of this order at which a representative of the Harris County District Attorney’s Office and
appellant’s appointed counsel shall be present. Appellant also shall 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 use of a closed-circuit video teleconferencing system that
provides for a simultaneous compressed full motion video and interactive communication
of image and sound.
       We direct the trial court to:
       1) Make a finding regarding whether or not appellant has the right to appeal;
       2) If necessary, execute an amended certification of appellant’s right to appeal;
       3) Make any other findings and recommendations the trial court deems appropriate;
          and
       4) Enter written findings of fact, conclusions of law, and recommendations as
          appropriate, separate and apart from any docket sheet notations.
        The trial court shall have a court reporter, or court recorder, record the hearing. The
trial court clerk is directed to file a supplemental clerk’s record containing the trial court’s
findings, recommendations, and orders with this Court within 25 days of the date of this
order. The court reporter is directed to file the reporter’s record of the hearing within 25
days of the date of this order. If the hearing is conducted by video teleconference, a
certified recording of the hearing shall also be filed in this Court within 25 days of the
date of this order.
        The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when records that
comply with our order are filed with the Clerk of this Court. The court coordinator of the
trial court shall set a hearing date and notify the parties.

       It is so ORDERED.

Judge’s signature: /s/ Rebeca Huddle
                       Acting individually
Date: April 4, 2017
