                               COURT OF APPEALS FOR THE
                          FIRST DISTRICT OF TEXAS AT HOUSTON

                                           ORDER

Appellate case name:     Nseabasi Samuel Williams v. The State of Texas

Appellate case number:   01-15-00509-CR

Trial court case number: 1455282

Trial court:             263rd District Court of Harris County

       Appellant pleaded guilty to the offense of engaging in organized criminal activity
by the fraudulent use of identifying information. Although there was no agreed
recommendation from the State as to sentencing, in return for appellant’s agreement to
plead guilty, the State agreed to abandon the enhancement paragraph and to reduce the
number of identification items used from thirteen to less than 5, which reduced the
offense from a second-degree felony to a third-degree felony. The trial court signed the
judgment of conviction, sentencing appellant to five years in the Institutional Division of
the Texas Department of Criminal Justice. The trial court’s certification of appellant’s
right to appeal indicates this is not a plea-bargain case and appellant has the right to
appeal.
       When a defendant agrees to plead guilty to a lesser or related offense, this is a type
of plea bargain, called a charge bargain. See Shankle v. State, 119 S.W.3d 808, 813 (Tex.
Crim. App. 2003) (en banc). And if the State agrees to dismiss a pending charge or not to
bring an available charge, this effectively puts a cap on punishment. See id. Here, the
State abandoned the enhancement and allowed appellant to plead guilty to a third-degree
felony offense, rather than the original second-degree charge, which reduced the
maximum sentence from 20 years’ imprisonment to 10 years’ imprisonment. Thus, the
defendant’s plea may have constituted a plea bargain.
        The Rules of Appellate Procedure require us to dismiss an appeal unless a
certification showing that the appellant has the right to appeal has been made part of the
record. See TEX. R. APP. P. 25.2(a)(2). The rules also provide that an amended trial
court’s certification of the defendant’s right to appeal correcting a defect or omission may
be filed in the appellate court. See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1. Further, when
we have a record, we are obligated to review the record to ascertain whether the
certification is defective and, if it is defective, we must use Rules 37.1 and 34.5(c) to
obtain a correct certification. Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App.
2005); see TEX. R. APP. P. 34.5(c), 37.1.
       Accordingly, we abate this appeal and remand the cause to the trial court for
further proceedings. On remand, the trial court shall conduct a hearing within 20 days of
the date of this order at which a representative of the Harris County District Attorney’s
Office and appellant’s appointed counsel shall be present. Appellant also shall be present
for the hearing in person or, if appellant is incarcerated, at the trial court’s discretion,
appellant may participate in the hearing by use of a closed-circuit video teleconferencing
system that provides for a simultaneous compressed full motion video and interactive
communication of image and sound.*
       We direct the trial court to:
       1) Make a finding regarding whether or not appellant has the right to appeal;
       2) If necessary, execute an amended certification of appellant’s right to appeal;
       3) Make any other findings and recommendations the trial court deems
          appropriate; and
       4) Enter written findings of fact, conclusions of law, and recommendations as
          appropriate, separate and apart from any docket sheet notations.
       The trial court shall have a court reporter, or court recorder, record the hearing.
The trial court clerk is directed to file a supplemental clerk’s record containing the trial
court’s findings, recommendations, and orders with this Court within 25 days of the
date of this order. The court reporter is directed to file the reporter’s record of the
hearing within 25 days of the date of this order. If the hearing is conducted by video
teleconference, a certified recording of the hearing shall also be filed in this Court within
25 days of the date of this order.
        The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when records
that comply with our order are filed with the Clerk of this Court. The court coordinator
of the trial court shall set a hearing date and notify the parties.

       It is so ORDERED.

Judge’s signature: /s/ Michael Massengale
                    Acting individually


Date: October 6, 2016



*      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.
