
                                    [pic]

                              COURT OF APPEALS

                          SECOND DISTRICT OF TEXAS

                                 FORT WORTH

                             NO. 02-17-00321-CR
                             NO. 02-17-00322-CR


|Theron Scott McDaniel             |    |APPELLANT                        |
|                                                                          |
|V.                                                                        |
|The State of Texas                |    |STATE                            |


y
                                ------------

                FROM THE 43rd District Court OF Parker COUNTY
                    TRIAL COURT NO. CR16-0566, CR16-0567

                                ------------

                               ABATEMENT ORDER

                                ------------
      Based on our review of the record, we are concerned  that  the  “Trial
Court’s Certification of Defendant’s Right of Appeal” is incorrect  in  each
case because, in each case, Appellant Theron Scott McDaniel entered  into  a
charge bargain under which he agreed to plead guilty to sexual assault of  a
child in exchange for the State’s agreement to waive a  count  of  indecency
with a child.  See Tex. R. App. P. 25.2(a)(2), (d);  Chavez  v.  State,  183
S.W.3d 675, 680 (Tex. Crim. App. 2006); Shankle v. State,  119  S.W.3d  808,
813–14 (Tex. Crim. App. 2003). [321CR39, 322CR39] Each judgment,  under  the
“Terms of Plea Bargain” section, reflects this agreement, stating, “Plea  to
Count I; Waive Count II; No agreement as to  sentence.”  [321CR43,  322CR44]
However, the trial court’s certification in each case states that  the  case
“is not a plea-bargain case, and the defendant has  the  right  of  appeal,”
and the  trial  judge  handwrote  in  “as  to  punishment  only.”  [321CR46;
322CR47]
      The State’s agreement to waive the indecency  count  in  exchange  for
McDaniel’s guilty plea in each case to sexual assault of a  child  qualifies
as a plea bargain subject to rule of appellate  procedure  25.2(a)(2).   See
Tex. R. App. P. 25.2(a)(2);  Shankle,  119  S.W.3d  at  813–14.   The  trial
court’s certifications are thus incorrect, and we abate  these  appeals  and
remand the cases to the trial court for entry in each  case  of  an  amended
certification that comports with the record.  See Tex. R. App.  P.  25.2(d),
34.5(c)(2).  On or before Monday, August 20,  2018,  the  trial  court  must
sign an amended certification in each case.
      The trial court, McDaniel,  and  McDaniel’s  counsel  must  sign  each
amended certification if practicable.  If McDaniel  and  McDaniel’s  counsel
are unavailable to sign the amended certifications,  the  trial  court  must
send them copies of the signed order and provide this court  with  proof  of
such service.  The trial court  shall  secure  a  complete,  proper  amended
certification  in  each  case  and  must  inform  this  court  as  soon   as
practicable if it is unable to  execute  the  certifications  in  accordance
with the requirements of rule 25.2(d).  See Tex. R. App. P. 25.2(d).
      In each case, a supplemental clerk’s  record  containing  the  amended
certification must be filed with this court no  later  than  Monday,  August
20, 2018. See Tex. R. App. P. 34.5(c)(2).  Upon receipt of the  supplemental
clerk’s record in each case, these appeals will be automatically  reinstated
and must either continue or be dismissed.
      The clerk of this court shall transmit a copy of  this  order  to  the
trial court judge, the trial  court  clerk,  the  court  reporter,  and  the
attorneys of record on appeal.
      DATED August 7, 2018.
                                             PER CURIAM


