Opinion filed February 12, 2015




                                              In The


           Eleventh Court of Appeals
                                          ___________

                                    No. 11-14-00338-CR
                                          ___________

                    BRITNEY NICOLE DOKEY, Appellant
                                                 V.
                        THE STATE OF TEXAS, Appellee


                        On Appeal from the 350th District Court
                                Taylor County, Texas
                            Trial Court Cause No. 10918-D


                         MEMORANDUM OPINION
       Appellant, Britney Nicole Dokey, has filed an appeal from an order in which
the trial court denied her request for bail pending appeal.1 See TEX. CODE CRIM.
PROC. ANN. art. 44.04(c), (g) (West 2006); see also TEX. R. APP. P. 31. We vacate
and remand.



       1
          We note that the appeal from the judgment revoking community supervision is currently pending
in this court in our Cause No. 11-14-00307-CR.
        Appellant had previously been placed on community supervision when she
was convicted of the offense of tampering with a governmental record. The State
filed a motion to revoke, and Appellant entered a plea of true to the allegations in
the motion to revoke. Based upon an agreement between the parties, the trial court
revoked Appellant’s community supervision and assessed her punishment at
confinement in a state jail for seventeen months. After filing a notice of appeal
from the revocation, Appellant filed a motion in which she requested that the trial
court “set an appeal bond in a reasonable amount” pending the appeal of the
judgment revoking her community supervision. The trial court held a brief hearing
on the motion, during which it heard testimony from Appellant and then denied
Appellant’s motion.
        Article 44.04 of the Code of Criminal Procedure contains the provisions
relating to appeal bonds. See CRIM. PROC. art. 44.04. Under that statute, Appellant
was eligible to have the trial court consider her for bail pending appeal. See id. art.
44.04(b), (c). 2 We review the trial court’s determination under Article 44.04 for an
abuse of discretion. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App.
1981). Under that standard, we will not disturb a trial court’s decision as long as it
        2
            Article 44.04 provides in relevant part:
                (b) The defendant may not be released on bail pending the appeal from any
        felony conviction where the punishment equals or exceeds 10 years confinement or
        where the defendant has been convicted of an offense listed under Section 3g(a)(1),
        Article 42.12, but shall immediately be placed in custody and the bail discharged.
                 (c) Pending the appeal from any felony conviction other than a conviction
        described in Subsection (b) of this section, the trial court may deny bail and commit the
        defendant to custody if there then exists good cause to believe that the defendant would
        not appear when his conviction became final or is likely to commit another offense while
        on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail,
        admit him to reasonable bail until his conviction becomes final. The court may impose
        reasonable conditions on bail pending the finality of his conviction. On a finding by the
        court on a preponderance of the evidence of a violation of a condition, the court may
        revoke the bail.

CRIM. PROC. art. 44.04(b), (c) (emphasis added).


                                                       2
was within the zone of reasonable disagreement.                   Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1991).
       At the bond hearing, no evidence was offered other than Appellant’s
testimony that she was pregnant, that she was having problems with her pregnancy,
that she had three children to take care of, that she would live with her father in
Merkel if she were released on bond, that she had completed a life skills course,
and that her mother also lived in the area. The prosecutor did not cross-examine
Appellant, did not present any evidence or argument at the hearing, and did not ask
the trial court to take judicial notice of the court’s file.                 After Appellant’s
testimony, the trial court ruled in open court, “It was a plea bargain case, the judge
certified she had no right to appeal, and the Motion for the Appeal Bond is
denied.”3 See TEX. R. APP. P. 25.2(a)(2), (d). In a conclusion of law, the trial court
determined that “[t]his is a plea bargain case, both at the trial level and the
revocation of probation level which were all followed by the Trial Judge and the
Defendant has no right to appeal.”
       However, despite Appellant’s plea of true and the agreement with respect to
punishment, Appellant’s revocation of community supervision was not a plea
bargain case as reflected in the trial court’s certification. The Court of Criminal
Appeals has explicitly held that Rule 25.2(a)(2) “refers only to plea bargains with
regard to guilty pleas, not pleas of true on revocation motions.” Dears v. State,
154 S.W.3d 610, 613 (Tex. Crim. App. 2005).                        The court further stated:
“Regardless of whether a court feels that a defendant should be ‘bound’ by an
agreement on a plea of true, the plain language of Rule 25.2(a)(2) does not
contemplate that situation.” Id. Rule 25.2(a)(2) does not limit Appellant’s right to

       3
         We note that the Honorable John Weeks presided over the hearing on the appeal bond, whereas
the Honorable Thomas Wheeler had presided over the hearing on the motion to revoke community
supervision and had certified that Appellant had no right to appeal from the revocation.

                                                 3
appeal from the judgment revoking her community supervision. See id. Thus,
Judge Wheeler’s certification of Appellant’s right to appeal from the revocation of
community supervision was “defective.”         See id. at 615; see also TEX. R.
APP. P. 37.1.   Judge Weeks relied on Judge Wheeler’s defective certification.
Because the certification should have reflected that Appellant had a right to appeal
the revocation of her community supervision, Judge Weeks abused his discretion
when, in reliance on a defective certification, he denied Appellant’s request for an
appeal bond.
      We vacate the trial court’s “Order Denying Appeal Bond” and remand the
cause to the trial court to reconsider Appellant’s request for an appeal bond.


                                                    PER CURIAM


February 12, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                          4
