                                                                     The State of TexasAppellee




                            Fourth Court of Appeals
                                   San Antonio, Texas
                                          April 16, 2014

                                       No. 04-14-00237-CR

                                      David A. RAMIREZ,
                                           Appellant

                                                 v.

                                      The STATE of Texas,
                                            Appellee

                  From the 38th Judicial District Court, Medina County, Texas
                               Trial Court No. 13-07-11311-CR
                        Honorable Camile G. Dubose, Judge Presiding


                                         ORDER
        David A. Ramirez pled nolo contendere to a charge of sexual assault of a child pursuant
to a plea bargain and the trial court placed Ramirez on deferred adjudication community
supervision.     The State filed a motion to adjudicate guilt, alleging Ramirez had violated
conditions of his community supervision. On March 5, 2014, Ramirez pled true to one of the
alleged violations. The trial court adjudicated Ramirez guilty and sentenced him to ten years in
prison. The trial court signed a certificate stating that this “is a plea-bargain case, and the
defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). Ramirez timely filed a notice
of appeal. The clerk’s record, which includes the trial court’s Rule 25.2(a)(2) certification, has
been filed. See id. Rule 25.2(d).

        Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure requires “[t]he trial court [to]
enter a certification of the defendant’s right of appeal in every case in which it enters a judgment
of guilt or other appealable order.” TEX. R. APP. P. 25.2(a)(2). This court must dismiss an appeal
“if a certification that shows the defendant has the right of appeal has not been made part of the
record.” TEX. R. APP. P. 25.2(d). However, we are first “obligated to review that record [to]
ascertain[] whether the certifications [are] defective.” Dears v. State, 154 S.W.3d 610, 615 (Tex.
Crim. App. 2005). A certification is “defective” if it “proves to be inaccurate” “when compared
with the record.” Id. at 614.

       “Once a defendant who enters into a plea bargain for deferred adjudication community
supervision decides not to appeal the order deferring adjudication, the restrictions of Rule
25.2(a)(2) are no longer applicable.” Hargesheimer v. State, 182 S.W.3d 906, 912 (Tex. Crim.
App. 2006). Any agreement between Ramirez and the State with regard to the motion to
adjudicate and adjudication of guilt was not a “plea bargain” subject to the restrictions of Rule
25.2(a)(2). See id. at 913 (stating that Rule 25.2(a)(2) does not apply to restrict appeal from
adjudication of guilt even if there was second agreement as to punishment); Dears, 154 S.W.3d
at 613 (holding Rule 25.2(a)(2) restriction on right of appeal in “plea bargain case” applies only
when defendant pleads “guilty” or “nolo contendere,” and does not apply when defendant pleads
“true” to allegations in motion to revoke); see also Gutierrez v. State, 108 S.W.3d 304, 309–10
(Tex. Crim. App. 2003) (“In the context of revocation proceedings, the legislature has not
authorized binding plea agreements, has not required the court to inquire into the existence of a
plea agreement or admonish the defendant pursuant to [Article] 26.13, and has not provided for
withdrawal of a plea after sentencing.”). Accordingly, Ramirez does have the right to appeal the
judgment adjudicating him guilty, and “the trial judge must check the box on the certification
form indicating that the case ‘is not a plea-bargain case, and the defendant has the right of
appeal.’” Hargesheimer, 182 S.W.3d at 913.

        Because the certification of Ramirez’s right of appeal is inaccurate when compared to the
record, it is defective. Dears, 154 S.W.3d at 614. To “ensur[e] that [Ramirez’s] right to appeal is
not abridged due to ‘defects or irregularities’ which can be corrected,” we abate this appeal for a
period of ten days to allow the trial court to amend its certification of the defendant’s right of
appeal. See id.; Hargesheimer, 182 S.W.3d at 913.

        We order the trial court clerk to file a supplemental record containing the amended
certification not later than April 28, 2014.

        We further order the clerk of this court to serve copies of this order on the attorneys of
record, the trial court judge, and the trial court clerk.



                                                     _________________________________
                                                     Luz Elena D. Chapa, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 16th day of April, 2014.



                                                     ___________________________________
                                                     Keith E. Hottle
                                                     Clerk of Court
