                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON

                                           ORDER

Appellate case name:     Dwayne Allen Bryant v. The State of Texas

Appellate case number:   01-16-00409-CR

Trial court case number: 1492209

Trial court:             262nd District Court of Harris County

       Appellant pleaded guilty to the offense of possession of a controlled substance
without an agreed recommendation from the State as to sentencing. The trial court
signed the judgment of conviction, sentencing appellant to two years in the Institutional
Division of the Texas Department of Criminal Justice. 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:
               [W]e hold that, 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. See also Ex parte Broadway, 301 S.W.3d 694, 697-98 (Tex. Crim. App. 2009
(reiterating Delaney rule, but finding it distinguishable where State gave consideration for
the waiver of the right of appeal). Here, there is no indication in the record that the State
gave any consideration for appellant’s waiver of his right of appeal.
        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 causes 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.1
       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.


1      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.
Judge’s signature: /s/ Rebeca Huddle
                    Acting individually    Acting for the Court


Date: July 21, 2016
