      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00097-CR



                                Robert William Moore, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
       NO. CR2006-105, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Robert William Moore timely filed a notice of appeal after the district court revoked

his deferred adjudication community supervision, convicted him of indecency with a child, and

imposed a 12-year sentence. The district court has certified that this is a plea-bargain case and

Moore has no right of appeal. Based on the district court’s certification, the State has filed a motion

to dismiss the appeal.

               In a plea bargain for deferred adjudication, the bargain is complete when the

defendant enters his plea of guilty in exchange for deferred adjudication community supervision.

Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006). Appellate rule 25.2(a)(2)

restricts the defendant’s right of appeal from the deferred adjudication order, but does not restrict

the defendant’s right of appeal following a subsequent adjudication of guilt. Id.; Tex. R. App. P.

25.2(a)(2). This is the case even if the defendant pleaded “true” to the allegations in the motion to
adjudicate in exchange for an agreed punishment recommendation, because rule 25.2(a)(2) applies

only when the “defendant’s plea is guilty or nolo contendere.” Tex. R. App. P. 25.2(a)(2); see also

Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) (holding that plea bargain

recommendation is not binding on trial court at revocation hearing). After adjudication of guilt, the

defendant’s appeal is restricted only by article 42.12, section 5(b). Hargesheimer, 182 S.W.3d at

912; Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2006). We cannot determine from

the documents forwarded to this Court with the notice of appeal whether the plea bargain referenced

in the trial court’s certification was at the original trial or at the adjudication hearing, but, in either

event, it does not restrict Moore’s right of appeal following adjudication.

                The appeal is abated. The district court is instructed to prepare and file an amended

certification reflecting that this is not a plea-bargain case, and the defendant has the right of appeal.

Hargesheimer, 182 S.W.3d at 913. A copy of the amended certification shall be forwarded to the

clerk of this Court no later than July 21, 2008.




                                                         ____________________________________

                                                         Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Abated

Filed: July 8, 2008

Do Not Publish



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