                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER OF ABATEMENT

Appellate case name:         Ether Laver Thomas v. The State of Texas

Appellate case number:       01-18-00504-CR

Trial court case number:     15–DCR–070852

Trial court:                 400th District Court of Fort Bend County

       Appellant pleaded guilty, without an agreed recommendation as to punishment, to
felony theft and money laundering. The trial court found appellant guilty as charged and
sentenced her to 28 years’ imprisonment. The trial court’s certification of appellant’s right
to appeal states that her case was a plea bargain with no right to appeal and that she waived
the right to appeal. Appellant timely filed a notice of appeal to challenge her convictions
on the basis that her guilty pleas were neither knowing nor voluntary.

        The Rules of Appellate Procedure require this Court 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). But they also provide that an amended certification
of the defendant’s right to appeal may be filed in the appellate court to correct a defect or
omission. See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1. A defective certification includes one
that is “correct in form but which, when compared with the record before the court, proves
to be inaccurate.” Jones v. State, 488 S.W.3d 801, 804 (Tex. Crim. App. 2016) (quoting
Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005)). A certification that is
contrary to the record before the appellate court is therefore defective. Jones, 488 S.W.3d
at 804–05. If the trial court’s certification is defective, the appellate court must use Rules
37.1 and 34.5(c) to obtain a correct certification. Dears, 154 S.W.3d at 614–15; see TEX.
R. APP. P. 34.5(c), 37.1.

       A review of the record reveals that the trial court’s certification of appellant’s right
to appeal was defective. Because her sentencing was not agreed upon, appellant could not
effectively waive her right to appeal unless the State gave her consideration for that waiver.
See Carson v. State, 559 S.W.3d 489, 494–96 (Tex. Crim. App. 2018) (holding that record
must show that State gave its consent to defendant’s waiver of his right to jury trial “in
exchange for the defendant’s waiver of his appeal,” and that defendant’s waiver “was made
in exchange for consideration given by the State and, thus, was voluntary, knowing and
intelligent”). There is no indication in appellant’s plea paperwork, elsewhere in the Clerk’s
Record, or anywhere in the Reporter’s Record that her waiver of her right to appeal was
bargained for in exchange for the State’s consent to her waiver of a jury trial. See TEX.
CODE CRIM. PROC. ANN. art. 1.13 (defendant may not unilaterally waive right to jury trial;
trial court and State must consent). On the contrary, the record reflects that the State’s
waiver of a jury trial was given in consideration not for appellant’s waiver of appeal, or as
part of an agreement that included that waiver, but exclusively for her agreement to plead
guilty to the two felony offenses. Cf. Carter v. State, No. 01-18-00116-CR, 2019 WL
2621734, at *2 (Tex. App.—Houston [1st Dist.] June 27, 2019, no pet.) (holding that
State’s consent to waiver of jury trial was induced by defendant’s waiver of his right of
appeal where defendant’s plea paperwork stated, “State waives right to jury trial in
exchange for Defendant waiving right to appeal”).

        For instance, in the Written Stipulation and Judicial Confession, which was part of
appellant’s Plea of Guilty or Nolo Contendere, appellant initialed the statement that “the
attorney for the State will recommend to the Court that my punishment be assessed at the
following,” next to which was handwritten in a blank space, “State will waive its right to a
jury trial. This is an ‘open’ plea without a recommendation,” followed by the preprinted
statement, “I agree and accept that recommendation and have entered into a plea-bargain
agreement for such recommendation.” And on the last page of the Plea of Guilty or Nolo
Contendere, the ADA’s signature appears under the statement, “Before the entry of the
Defendant’s plea, I hereby consent to and approve the waiver of trial by jury and the
stipulations contained in this document,” which “document”—Plea of Guilty or Nolo
Contendere—contains no reference to appellant’s waiver of appeal. In addition, the trial
court’s judgment states, “it appearing to the Court that the Defendant, her counsel, and the
State’s attorney have agreed in writing in open court to waive a jury in the trial of this cause
and to submit this cause to the Court,” and finds “there was no plea-bargaining agreement
between the State and the Defendant,” but makes no mention of appellant’s waiver of
appeal. In sum, the pertinent documents do not reflect that appellant’s waiver of appeal
induced, even in part, the State’s waiver of a jury trial.

       Because the certification appears defective, we abate the appeal and remand the
cause to the trial court for further proceedings. The trial court shall conduct a hearing at
which a representative of the Fort Bend District Attorney’s Office and appellant’s 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
closed-circuit video teleconferencing.




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       We direct the trial court to:

       1) Make findings regarding whether the State’s consent to appellant’s waiver of her
          right to a jury trial was given as consideration for appellant’s waiver of her right
          to appeal;
       2) If necessary, execute an amended certification of appellant’s right to appeal
          indicating whether appellant has the right to appeal; and
       3) Make any other findings and recommendations the trial court deems appropriate.
          See TEX. R. APP. P. 25.2(a)(2), (d), (f); 34.5(a)(12), (c)(2); 37.1.

       The trial court’s court coordinator shall set the hearing date no later than 20 days
from the date of this order and notify the parties and the Clerk of this Court of such date.
The trial court clerk is directed to file a supplemental clerk’s record containing the trial
court’s amended certification, findings, and orders with this Court within 10 days of the
date of the hearing. The court reporter is directed to file the reporter’s record of the hearing
within 10 days of the date of the hearing.

       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 the supplemental
clerk’s record and the reporter’s record of the hearing are filed in this Court.

       It is so ORDERED.


Judge’s signature: /s/ Evelyn V. Keyes_______________________________________
                  Acting individually

Date: __October 3, 2019__




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