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                              CAUSE NO. 12-15-00109-CR
                             IN THE COURT OF APPEALS
                    TWELFTH COURT OF APPEALS DISTRICT
                                      TYLER, TEXAS


LEOPOLDO TOVAR,                              }       APPEALED FROM 3RD
APPELLANT

V.                                           }       DISTRICT COURT IN AND FOR

THE STATE OF TEXAS,                          }       ANDERSON COUNTY, TEXAS
APPELLEE

                 PER CURIAM ORDER ON ABATEMENT AND REMAND
       Pursuant to a plea agreement with the State, Appellant, Leopoldo Tovar, pleaded guilty to
driving while intoxicated (third or more) and was placed on community supervision for ten
years. Subsequently, on the State’s motion, the trial court revoked Appellant’s community
supervision and sentenced him to imprisonment for ten years. Appellant now appeals “from the
judgment of conviction and sentence” for the revocation of his community supervision. After
examining the appellate record, we abate the appeal and remand the case for further proceedings.
See TEX. R. APP. P. 25.2(a)(2), 34.5(c)(2), 37.1; Dears v. State, 154 S.W.3d 610, 614-15 (Tex.
Crim. App. 2005).
The Trial Court’s Certification
       A trial court is required to enter a certification of a defendant’s right of appeal in every
case in which it renders a judgment of guilt or other appealable order. See TEX. R. APP. P.
25.2(a)(2). In this case, the trial court’s certification is dated April 13, 2015, and is signed by
Appellant and his counsel. The certification states that “this criminal case [ ] is a plea-bargain
case, and the defendant has NO right of appeal.”
The Record
       The clerk’s record includes a document entitled “Felony Agreed Plea Recommendation”
signed by Appellant and his counsel. The document reflects that it was signed in connection
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with Appellant’s guilty plea to the charged offense–“driving while intoxicated 3rd or more.”
The agreed sentencing recommendation was “10 years probated for 10 years.” The judgment of
conviction shows that the trial court sentenced Appellant in accordance with the plea agreement,
and the trial court certification states that the case “is a plea-bargain case, and the defendant has
NO right of appeal.” Other documents in the clerk’s record indicate that the State filed a motion
to revoke Appellant’s community supervision and that the trial court granted the motion. The
reporter’s record has not been filed.
Applicable Law
        According to Texas Rule of Appellate Procedure 25.2(a)(2), a plea bargain case is one in
which a defendant’s plea was guilty or nolo contendere. However, the clerk’s record shows that
this is an appeal from a revocation of community supervision. Although the judgment revoking
Appellant’s community supervision includes a finding that Appellant pleaded “true” to all but
one of the State’s allegations in its motion to revoke, nothing in the record indicates that this was
a negotiated plea. Moreover, Rule 25.2(a) does not apply to negotiated pleas in revocation
proceedings. See Dears, 154 S.W.3d at 613. Therefore, because the underlying case is a
revocation of community supervision, it is not a plea bargain case.
        Furthermore, a defendant may appeal his conviction and sentence at the time he is placed
on community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 23(b) (West Supp. 2014).
A defendant also may appeal the revocation of his community supervision if, as here, his
community supervision has been revoked and he is “called on” to serve a sentence of
confinement or incarceration. See id. Thus, for purposes of appeal, the revocation is a separate
proceeding from the conviction and sentencing. See id.
Abatement
        Based on our review of the record, it does not appear that this case is a plea bargain case.
Consequently, it appears that the trial court’s certification is defective. See Dears, 154 S.W.3d at
614 (holding that a defective certification includes one that is correct in form but, when
compared to the record, proves to be inaccurate). Accordingly, we abate the appeal and remand
the case to the trial court to conduct a hearing, if necessary, to reconsider its April 13, 2015 trial
court certification.
        We further direct that, after making its determination, the trial court re-certify whether
Appellant has the right to appeal. The trial court shall cause any hearing to be transcribed, make
findings of fact and conclusions of law supporting its determination, and issue any orders
necessary for resolution of the issue. The trial court’s findings of fact and conclusions of law,
the re-certification, and any orders it renders shall be included in a supplemental clerk’s record.
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The reporter’s record of any hearing conducted shall be included in a supplemental reporter’s
record. The trial court shall, within thirty days of the date of this order, cause the clerk of the
trial court and the court reporter, if any, to forward to this Court any supplemental record
prepared in compliance with this order.
       WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th
Court of Appeals District of Texas, at Tyler.
       GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the
11th day of August 2015, A.D.
                                                     CATHY S. LUSK, CLERK
                                                     12TH COURT OF APPEALS


                                                     By: ________________________________
                                                     Katrina McClenny, Chief Deputy Clerk
