                                   NO. 12-13-00174-CR

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

MARSHALL LUCAS,                                     §           APPEAL FROM THE 159TH
APPELLANT

V.                                                  §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                           §            ANGELINA COUNTY, TEXAS

                    PER CURIAM ORDER ON ABATEMENT AND REMAND
         Appellant Marshall Lucas appeals his conviction for intoxication assault. 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).
Here, the trial court’s certification is dated March 7, 2013, and is signed by Appellant and his
counsel. The certification states that “[t]his criminal case is not a plea-bargain case and the
defendant has the right of appeal.” “[A]s to punishment only” is handwritten beside this statement.
The Record
         The clerk’s record includes a document entitled “Written Plea Admonishments–Waivers–
Stipulations.” In paragraph 1 of the document, Appellant is informed that he is charged with two
felony offenses:     intoxication assault (count I) and aggravated assault (count II).           Also in
paragraph 1 is a typewritten statement that “[t]he State moves to reduce such charge to” followed by
the handwritten notation “Dismiss-count II: Aggravated Assault.” In another part of the document
is a recitation that “[t]he State and I mutually recommend to the Court that punishment in this case
be assessed at.” This is followed by the handwritten notation “open plea / P.S.I. sentencing.”
There is no statement in the document that the dismissal of count II is pursuant to a plea agreement
between Appellant and the State.
       At the plea hearing, the trial court judge stated that “as part of, I guess, a limited plea
bargain, the State has agreed to dismiss Count Two, aggravated assault, and so this is going forward
with Count One intoxication assault. Is that right?” The prosecutor responded that this was
correct. Later in the hearing, the trial court judge made the following inquiry: “[A]lthough the
State has a limited plea bargain by dismissing Count Two, I take it there is no plea bargain for a
disposition of Count One. Is that right?” Appellant’s trial counsel and the prosecutor responded
that this was correct.
       The record also includes a written waiver of the right to appeal signed by Appellant and
accepted by the trial court on March 7, 2013, the date of the plea hearing and the trial court’s
certification. The waiver reads as follows:


                 Having been informed of whatever right to appeal may exist, and having agreed to waive my
       right to appeal, both guilt/innocence and punishment, and after having consulted with my attorney, I
       hereby voluntarily, knowingly and intelligently waive my right to appeal.



Sentence was imposed on May 22, 2013.
       In this court, the State contends that Appellant waived his right to appeal and, in exchange
for a guilty plea, the State agreed to dismiss count II of the indictment. Therefore, the State
contends that Appellant has no right to appeal.
Applicable Law
       In a plea bargain case, a defendant who pleads guilty or nolo contendere may appeal only (1)
those matters raised by written motion filed and ruled on before trial or (2) with permission of the
trial court, if the punishment did not exceed the punishment recommended by the prosecutor and
agreed to by the defendant. TEX. R. APP. P. 25.2(a)(2). These limitations do not apply to
convictions from open pleas of guilty. See id. An agreement that results in a defendant’s pleading
guilty to one charge in exchange for dismissal of another charge (a “charge” bargain) is a plea
bargain agreement under Rule 25.2(a)(2). See Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim.
App. 2009).



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         A defendant in a noncapital case may waive any rights secured him by law. See TEX. CODE
CRIM. PROC. ANN. art. 1.14(a) (West 2005).                      In the absence of a plea agreement regarding
sentencing, a presentence waiver of the right to appeal typically is ineffective. Ex parte Delaney,
207 S.W.3d 794, 796-97 (Tex. Crim. App. 2006). However, presentencing waivers of the right to
appeal are enforceable if they are part of a plea bargain or if the state has given consideration for the
waiver. Ex parte Broadway, 301 S.W.3d 694, 697-98 (Tex. Crim. App. 2009). As stated above,
a charge bargain is a plea bargain under Rule 25.2(a)(2). See, e.g., Kennedy, 297 S.W.3d at 342.
An agreement to dismiss a pending charge effectively puts a cap on punishment at the maximum
sentence for the charge that is not dismissed. Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim.
App. 2003).       Thus, it can be said that an agreement exists regarding punishment.                See id.
Consequently, a presentence waiver is effective when it is entered pursuant to a charge bargain.
See Ex parte Broadway, 301 S.W.3d at 697-98.
Abatement
         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 a charge bargain agreement, 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 whether Appellant and the State
entered into a charge bargain agreement and the terms of any such agreement.
         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.
Order entered February 5, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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