                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                      ORDER OF ABATEMENT

Appellate case name:       Joshua Wayne Hargraves v. The State of Texas

Appellate case number:     01-13-00194-CR
                           01-13-00195-CR
                           01-13-00196-CR

Trial court case number: 11-CR-0683

Trial court:               10th District Court of Galveston County

        The certifications completed by the trial court in these appeals each indicate that “this is
not a plea-bargain case, and the defendant has the right of appeal,” with the trial judge’s hand-
written addition “as to punishment only.” These certifications are not supported by the record
presently before this Court. The record indicates that the State abandoned an enhancement
paragraph for each charged offense. At the plea hearing, appellant acknowledged that if the
State proceeded with the enhancement paragraphs, appellant’s pleas of guilty would result in
automatic life sentences. However, the record is unclear regarding whether there was any
specific agreement regarding the abandonment of these enhancements. If the appellant agreed to
plead guilty in exchange for the State’s abandonment of the enhancement paragraphs, this charge
bargain is a plea bargain, and the appellant does not have the right to appeal unless the trial court
specifically granted permission. See Shankle v. State, 119 S.W.3d 808, 813–14 (Tex. Crim. App.
2003); see also Craven v. State, Nos. 02-11-00089-CR, 02-11-00090-CR, 2012 WL 2036449, *1
(Tex. App.—Fort Worth June 7, 2012, pet. ref’d) (State’s agreement to drop enhancement in
exchange for appellant’s plea of guilty was charge bargain, and appellant therefore had no right
of appeal). Alternatively, if there was no agreement regarding appellant’s guilty pleas and the
State’s abandonment of the enhancements, this is not a plea bargain case, and appellant has the
right to appeal, and is not limited to punishment only. See Monreal v. State, 99 S.W.3d 615,
619–20 (Tex. Crim. App. 2003); Young v. State, 8 S.W.3d 656, 666–67 (Tex. Crim. App. 2000).
We therefore abate this appeal and remove it from this Court’s active docket.
      We direct the trial court to conduct a hearing at which a representative of the Galveston
County District Attorney’s Office, appellant’s attorney, and appellant shall be present. If
appellant is incarcerated, at the trial court’s discretion, appellant may participate in the hearing
by closed-circuit video teleconferencing.1
        The trial court is directed to make written findings, contained in a separate written
document and not a docket sheet, regarding whether appellant agreed to plead guilty in exchange
for the State’s abandonment of the enhancement paragraphs, or whether there was no agreement
regarding the abandonment of the enhancements. The trial court is also directed to execute an
amended certification of the right to appeal consistent with the trial court’s findings. The
certification must be signed by the judge, appellant, and appellant’s counsel.
        The trial court shall have a court reporter record the hearing, and a reporter’s record of
the hearing shall be filed in this court within 30 days of the date of this order. A supplemental
clerk’s record containing the trial court’s findings and an amended certification shall be filed
with the Clerk of this Court within 30 days of the date of this order.
       The appeal will be reinstated on this Court’s active docket when the supplemental clerk’s
record and reporter’s record of the abatement hearing are filed in this Court. The court
coordinator of the trial court shall set a hearing date and notify the parties of such date.
       It is so ORDERED.

Judge’s signature: /s/ Justice Michael Massengale
                    Acting individually  Acting for the Court


Date: April 4, 2013




1      Any such teleconference must use a closed-circuit video teleconferencing system that provides
       for a simultaneous compressed full motion video and interactive communication of image and
       sound between the trial court, appellant, and any attorneys representing the State or appellant. On
       request of appellant, appellant and his counsel shall be able to communicate privately without
       being recorded or heard by the trial court or the attorney representing the State.
