                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                      ORDER OF ABATEMENT

Appellate case name:       Clint Constance Valdez v. The State of Texas

Appellate case number:     01-18-00322-CR

Trial court case number: 15CR2815

Trial court:               10th District Court of Galveston County

         Appellant was charged with the second-degree felony offense of Engaging in Prohibited
Sexual Conduct with Ancestor/Descendant. Appellant filed a pre-trial motion to quash the
indictment, challenging Section 25.02 of the Texas Penal Code as unconstitutional. After the trial
court denied the motion to quash, appellant pleaded guilty to the offense without an agreed
recommendation from the State regarding punishment. The trial court found appellant guilty and
assessed punishment at eight years’ imprisonment. The trial court’s certification of appellant’s
right to appeal states that “the defendant has waived the right to appeal as to guilt/innocence only.”
Appellant timely filed a notice of appeal. Appellant’s appointed counsel has moved to withdraw
from this appeal and filed a brief concluding that the appeal is frivolous. See Anders v. California,
386 U.S. 738, 744 (1967)
       As provided below, we abate the appeal and remand to the trial court to (1) appoint new
appellate counsel to represent appellant and (2) hold a subsequent hearing to determine whether
an amended certification of appellant’s right to appeal should be issued.
       I. Appointment of New Counsel on Appeal
        Under Anders, if appointed counsel concludes after reviewing the record and applicable
law that the appeal is without merit, counsel must advise the court, file a motion to withdraw, and
file a brief discussing any issue that might arguably support the appeal. See id. at 744; Kelly v.
State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014). The appellate court must then perform an
independent examination of the record and the law to determine whether the appeal is frivolous.
See Anders, 386 U.S. at 744. The question before us is not who will ultimately prevail but instead
whether any non-frivolous issue exists. If the court determines that there are arguable issues, it
must abate the appeal and remand with orders for the trial court to appoint new counsel. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
        Based on our independent review of the record and applicable law, we conclude that a
nonfrivolous issue may exist regarding appellant’s pre-trial motion challenging the
constitutionality of Penal Code Section 25.02. Accordingly, we strike counsel’s Anders brief and
grant counsel’s motion to withdraw. We abate this appeal and remand the cause for the trial court
to appoint new appellate counsel. The trial court is ordered to inform this Court in writing of the
identity of new counsel and the date of appointment within 20 days of the date of this order.
        II. Certification of Appellant’s Right to Appeal
         A defendant may waive his right to appeal as a part of a plea even when sentencing is not
agreed upon, where consideration is given by the State for that waiver. Ex parte Broadway, 301
S.W.3d 694, 699 (Tex. Crim. App. 2009). In this case, however, the record is insufficient to support
the trial court’s certification that appellant waived his right to appeal as to guilt/innocence because
the record does not indicate a bargained-for waiver of appellant’s right to appeal. See id. at 697–
99; Washington v. State, 363 S.W.3d 589, 589 (Tex. Crim. App. 2012). The Texas Rules of
Appellate Procedure permit amendment of a defective certification. See TEX. R. APP. P. 25.2(f),
34.5(c)(2), 37.1, 44.4; see also Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
        Accordingly, the trial court shall conduct a hearing within 30 days after the trial court
appoints new counsel at which a representative of the Galveston County District Attorney’s
Office and appellant’s new counsel shall be present. Appellant shall also 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 closed-circuit video teleconferencing.
        We direct the trial court to:
            1) Make findings regarding whether appellant waived his right to appeal as to
               guilt/innocence and whether consideration was given by the State for appellant’s
               waiving his right to appeal guilt/innocence;
            2) If no consideration was given by the State for appellant’s waiving his right to appeal
               as to guilt/innocence, execute an amended certification of appellant’s right to
               appeal indicating that this is not a plea-bargain case and appellant has the right to
               appeal; and
            3) Make any other findings and recommendations the trial court deems appropriate.
See TEX. R. APP. P. 25.2(a)(2), (d), (f), 34.5(a)(12), (c)(2), 37.1.
        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 certification
of appellant’s right to appeal and any other findings, recommendations, and orders of the trial court
with this Court within 20 days of the date of the hearing. See TEX. R. APP. P. 34.5(c)(2). The court
reporter is directed to file the reporter’s record of the hearing within 20 days of the date of the
hearing.
       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 the supplemental clerk’s record
and the reporter’s record of the hearing are filed with the Clerk of this Court.
        It is so ORDERED.

Judge’s signature: ____/s/ Sarah Beth Landau____
                                Acting individually
Date: ___May 16, 2019_____
