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                                 CAUSE NO. 12-14-00369-CR
                                IN THE COURT OF APPEALS
                       TWELFTH COURT OF APPEALS DISTRICT
                                           TYLER, TEXAS


ERIC GRIFFIN MOORE,                   }       APPEALED FROM 145TH DISTRICT COURT
APPELLANT

V.                                    }       IN AND FOR

THE STATE OF TEXAS,                   }       NACOGDOCHES COUNTY, TEXAS
APPELLEE


                 PER CURIAM ORDER ON ABATEMENT AND REMAND
       Appellant, Eric Moore, appeals “this case” in which he was convicted, following a guilty
plea, for two counts of sexual assault of a child. 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 signed two certifications—one dated September 17, 2014,
and another dated December 11, 2014. Both certifications are signed by Appellant and his
counsel. The September 17 certification states that this case “is a plea-bargain case, and the
defendant has NO right of appeal,” followed by the handwritten notation “as to guilt phase of
proceedings.” The certification also states that “the defendant has waived the right of appeal.”
The December 11 certification states that this case “is a plea-bargain case, and the defendant has
NO right of appeal,” followed by the handwritten notation “except as to sentencing.” The
certification also states that “the defendant has waived the right of appeal,” followed by the
handwritten notation “as to guilt only.”
The Record
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       The clerk’s record includes a document entitled “FELONY-DEFENDANT’S PLEA OF
GUILTY WAIVER, STIPULATION AND JUDICIAL CONFESSION” signed by Appellant and
his counsel. The document does not include any language that suggests the existence of a plea
bargain on either count of the indictment. However, the document contains various waivers of
rights, including the following:


               I further understand that in the event I am convicted I have the legal right of appeal to the
       Twelfth Court of Appeals of Texas, and also the right to be represented on appeal by an attorney
       or the record on appeal, [sic] the Court will, without expense to me and upon my timely and
       proper request provide an attorney and a proper record for such appeal; HOWEVER, I WAIVE
       ANY RIGHT TO A MOTION FOR NEW TRIAL OR APPEAL AND WISH TO ACCEPT
       SENTENCE.




       Also included in the clerk’s record is a document entitled “ADMONITIONS TO
DEFENDANT.” This document includes an initial statement that “[t]he punishment agreed to
between the State and you, the Defendant in the plea bargain is:” followed by a fill-in-the-
blanks-checklist of possible punishments and a final item, “______WAIVER OF ANY
APPEAL.” A large “X” appears across the initial statement and checklist. The blank preceding
the final item pertaining to waiver of appeal is not checked. This document is signed by
Appellant    and    his    counsel.         A     document        entitled     “AGREED           PUNISHMENT
RECOMMENDATION” also appears in the clerk’s record. However, an “X” is drawn across all
text in the document, and the document is unsigned.
Applicable Law
       A criminal defendant has a right to appeal an adverse judgment. See TEX. CODE CRIM.
PROC. ANN. art. 44.02 (West 2006); TEX. R. APP. P. 25.2. But a defendant may contract away
this right through an express waiver. See Ex parte Broadway, 301 S.W.3d 694, 697-98 (Tex.
Crim. App. 2009). A valid waiver will prevent a defendant from appealing without the consent
of the trial court. See Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). To be
valid, the waiver must be voluntary, knowing, and intelligent. Ex parte Delaney, 207 S.W.3d
794, 799 (Tex. Crim. App. 2006).
       Generally, when a defendant waives his right to appeal before sentencing and without an
agreement on punishment, the waiver is not valid. See Washington v. State, 363 S.W.3d 589,
589-90 (Tex. Crim. App. 2012) (per curiam). But the Texas Court of Criminal Appeals has held
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that presentencing waivers are enforceable if they are part of a plea bargain or the state has given
some consideration for the waiver. Ex parte Broadway, 301 S.W.3d at 699; Ex parte Delaney,
207 S.W.3d at 799. This rule applies even if the defendant does not purport to waive his right to
appeal punishment issues. Nichols v. State, 349 S.W.3d 612, 614-15 (Tex. App.–Texarkana
2011, pet. ref’d).
Abatement
        In the instant case, Appellant signed a presentence waiver of his right to appeal. The
judgment of conviction for each count states that the plea agreement was EIGHTEEN (18)
YEARS INSTITUTIONAL DIVISION, TDCJ.” Neither the “FELONY-DEFENDANT’S
PLEA OF GUILTY WAIVER, STIPULATION AND JUDICIAL CONFESSION” nor the
“ADMONITIONS TO DEFENDANT” shows that a plea bargain existed or that the State gave
any consideration for Appellant’s waiver of his right to appeal. Moreover, Appellant executed
the document including the purported waiver on September 17, 2014.               According to the
judgments, his sentence was imposed on December 11, 2014. There is nothing in the record
before us that shows Appellant knew what his punishment would be at the time he executed the
document containing the purported waiver. See Delaney, 207 S.W.3d at 797. Consequently, we
cannot conclude that the record shows Appellant waived his right to appeal.
        Based on our review of the record, 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
determine whether Appellant and the State entered into an agreement under which Appellant
agreed to waive his right to appeal for consideration provided by the State, and the terms of any
such agreement. See TEX. R. APP. P. 34.5(c), 44.3, 44.4; Dears, 154 S.W.3d at 614. 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.
        We further direct that, after making its determination, the trial court re-certify whether
Appellant has the right to appeal. 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. 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 to forward to this Court any supplemental record prepared in
compliance with this order.
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       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 2nd
day of March 2015, A.D.

                                                CATHY S. LUSK, CLERK
                                                12th Court of Appeals


                                                By:_______________________________________
                                                      Katrina McClenny, Chief Deputy Clerk
