                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON

                                            ORDER

Appellate case name:      Chandre Lachelle Davison v. The State of Texas

Appellate case number:    01-16-00447-CR

Trial court case number: 1486856

Trial court:              208th District Court of Harris County

       Appellant was originally charged with felony murder—a first-degree felony. In
return for a guilty plea, the State moved to reduce the charge to the lesser-included
offense of injury to a child done intentionally and knowingly—also a first-degree felony.
Appellant’s plea documentation lacked an agreed recommendation from the State as to
sentencing, but it nevertheless stated that appellant agreed to waive the right to appeal.
The trial court signed the judgment of conviction, sentencing appellant to 25 years’
imprisonment. The trial court’s certification of appellant’s right to appeal indicates
appellant waived the right to appeal.
       The Texas Court of Criminal Appeals has held that when a defendant waives his
right of appeal before sentencing and without an agreement as to punishment, the waiver
is not valid. See Ex parte Delaney, 207 S.W.3d 794, 798 (Tex. Crim. App. 2006). The
court said:
               . . . in order for a pretrial or presentencing waiver of the right
               to appeal to be binding at the punishment phase of trial, the
               waiver must be voluntary, knowing, and intelligent. One way
               to indicate that the waiver was knowing and intelligent is for
               the actual punishment or maximum punishment to have been
               determined by a plea agreement when the waiver was made.
               However, simply knowing the range of punishment for the
               offense is not enough to make the consequences of a waiver
               known with certainty, because it still does not allay the
               concern that unanticipated errors may occur at the
               punishment phase of trial.
Id. at 799. In Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009), the court
upheld a waiver of the right to appeal because the State gave consideration for the waiver
by agreeing to allow the trial court to consider community supervision with drug
treatment as opposed to the minimum 25-year sentence appellant otherwise would face.
See Broadway, 301 S.W.3d at 697-98; see also Jones v. State, 488 S.W.3d 801, 807 (Tex.
Crim. App. 2016) (upholding waiver of right to appeal because defendant received
consideration for his waiver by State agreeing to abandon one of two enhancement
paragraphs, reducing the minimum sentence from 25 to 5 years).

       In this case, there is no indication in the record that the State gave any
consideration for appellant’s waiver of his right of appeal. Although the State reduced the
charged offense from felony murder to injury to a child committed intentionally and
knowingly, both offenses are first-degree felonies with a possible sentence of life
imprisonment or imprisonment for not less than 5 and not more than 99 years. See TEX.
PENAL CODE § 19.02(b)(3), (c) (felony murder); id. § 22.04(a), (e) (injury to a child); id.
§ 12.32(a) (punishment for first-degree felony). Therefore, unlike in Broadway and
Jones, there does not appear to have been any sentencing benefit to appellant in the
charge reduction because the minimum and maximum punishment did not change.
        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. 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 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 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;

*      On request of appellant, 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.
       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/ Michael Massengale
                    Acting individually


Date: December 13, 2016
