                                  NO. 07-04-0008-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                    MARCH 23, 2004

                         ______________________________


                             DAVID RAMOS, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 46,215-E; HONORABLE ABE LOPEZ, JUDGE

                        _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                               MEMORANDUM OPINION


      Pursuant to the State’s motion to proceed with an adjudication of guilt on the original

charge of possession of a controlled substance for numerous violations of the conditions



      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
of his community supervision, appellant pled true without a recommendation on

punishment. Following a hearing on the State’s motion, the trial court sentenced appellant

to 20 years confinement. Pending before this Court is the State’s motion to abate this

appeal and remand the cause to the trial court with directions to re-certify David Ramos’s

right of appeal. Although no clerk’s record has been filed to date, the State has provided

us with certified copies of the necessary documents to dispose of its motion. We grant the

motion.


       Without a recommendation on punishment, appellant signed a document entitled

“Defendant’s Plea on Community Supervision Revocation” in which he averred he freely,

knowingly, and voluntarily waived any right to appeal he may have. Pursuant to Rule

25.2(a)(2) of the Texas Rules of Appellate Procedure which requires the trial court to enter

a certification of the defendant’s right of appeal, the court certified that “defendant has

waived the right of appeal.” A pre-sentence waiver of the right to appeal without a plea

agreement or a recommendation cannot be knowingly and intelligently made and is not

binding on a defendant. Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Cr.App. 1977).


       Relying on this Court’s decision in Hargesheimer v. State, No. 07-03-0544-CR, 2004

WL 112628, at *1 (Tex.App.–Amarillo Jan. 23, 2004, no pet. h.), the State now moves that

we abate the appeal and remand the cause to the trial court with directions to re-certify

whether appellant has a right to appeal. See Tex. R. App. P. 2, 34.5(c)(2), and 37.1. In

Hargesheimer, the State filed a motion to dismiss the appeal based on the trial court’s


                                             2
certification that the defendant had waived the right to appeal. We denied the motion

without prejudice and, based on an invalid pre-sentence waiver of the right to appeal

without a plea bargain or a recommendation on punishment, we abated the appeal and

remanded the cause for the trial court to re-certify the defendant’s right to appeal. Based

on Thomas and Hargesheimer, we agree with the State that this appeal must be abated

and the cause remanded to the trial court with directions to re-certify whether appellant has

the right to appeal. Should the trial court determine that appellant does have the right to

appeal, it shall execute a certification indicating so and conduct a hearing after notice to

the parties to determine the following:


       1.     whether appellant desires to prosecute an appeal; and


       2.     whether appellant is indigent and entitled to appointed counsel.


The trial court shall cause the hearing, if any, to be transcribed. If appellant desires to

continue this appeal and is entitled to appointed counsel, the trial court shall enter an order

appointing counsel and include counsel’s name, address, state bar number, telephone

number, and facsimile number.


       Finally, the re-certification and order appointing counsel, if any, shall be included in

a supplemental clerk’s record. A transcription of the hearing, if any, must be included in

a supplemental reporter’s record. Both the supplemental clerk’s and reporter’s record must

be filed with the Clerk of this Court on or before Monday, April 26, 2004. Should the trial


                                              3
court require more time to comply with the directions of this Court, it must request an

extension prior to April 26, 2004.


       Accordingly, the appeal is abated and the cause is remanded for further

proceedings.


                                              Per Curiam


Do not publish.




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