COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF CONTINUING ABATEMENT

 

Style: Curtis Lee Johnson v. The State of Texas

Appellate case number: V 01-11-00352-CR
Trial court: 208th District Court, Harris County, Texas

Trial court case number: 1 178448

The grand jury returned a true bill of indictment against appellant for the felony .
offense of aggravated robbery.’ On August 14, 2008, appellant ﬁled a request for counsel -
and a pauper’s oath declaration, and the trial court appointed Jerry Guerinot to represent
him. On July 29, 2009, appellant pleaded guilty. Although the plea was without a
sentencing agreement or other agreement from the State, the written stipulations and plea
documents include language stating that appellant waived his appeal if the punishment
assessed by the trial court did not exceed the sentence recommended by the State and
agreed to by the appellant. Also on July 29, 2009, the trial court executed a'certiﬁcation of
appellant’s right of appeal, which indicates that appellant has waived the right of appeal.
Almost three months later, on October 19, 2009, judgment was entered against appellant,
who was sentenced to 15 years in the Institutional Division of the Texas Department of
Criminal Justice. Appellant, acting pro se, ﬁled a notice of appeal on November 9, 2009.
Although the record contains no indication that appellant’s counsel moved to withdraw or
was permitted to withdraw, no counsel has appeared on appellant’s behalf in this appeal.

The trial court’s certiﬁcation of the appellant’s right of appeal is defective. The
certiﬁcation states that appellant waived the right to appeal, but the record does not support
the certiﬁcation. Appellant did not plead pursuant to a plea bargain, and the record does
not contain a written waiver of the right to appeal that was either executed in exchange for
some consideration ﬁom the State or alter appellant was sentenced.1 See Ex parte

1 Appellant could also have orally waived the right to appeal aﬁer the trial court imposed the
sentence. See Moreno v. State, 327 S.W.3d 267, 268—69 (Tex. App.—San Antonio 2010,
no pet.) (“The fact that the waiver was oral rather than written is of no consequence.”);
Delatorre v. State, 957 S.W.2d 145, 149 (Tex. App.—Austin 1997, pet. ref’ (1) (“A written
or oral waiver prevents a defendant from appealing as long as the waiver was made
knowingly and intelligently and with certainty as to what punishment would be
assessed”). As a result of appellant’s waiver of the right to have a court reporter record ,
his plea, there is no record to establish whether or not appellant orally waived the right to
appeal aﬁer sentencing. Because the trial court’s certiﬁcation states that the appellant
waived the right to appeal, we normally would “indulge every presumption in favor of the -
regularity of the documents in the trial court,” such that‘the recitation in the trial court’s

 

Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009) (holding that defendant may
validly execute pretrial waiver right to appeal where consideration is given by State for
waiver); Ex parte Delaney, 207-S.W.3d 794, 799—800 (Tex. Crim. App. 2006) (holding
“that, in order for a pretrial or presentencing waiver of the right to appeal to be binding at
the punishment phase of trial, the waiver must be voluntary, knowing, and intelligent,” and
that plea agreement involving sentencing recommendation indicates knowing and
intelligent waiver); Monreal v. State, 99 S.W.3d 615, 616 (Tex. Crim. App. 2003)
(upholding non-negotiated waiver of appeal executed after sentence was assessed); Blanca
v. State, 18 S.W.3d 218, (Tex. Crim. App. 2000) (holding that pretrial waiver of appeal is '
valid when made in exchange for sentencing recommendation from State). On October
1 1, 201 1, we abated this case for a determination by the trial court of whether appellant had
retained his right of appeal and, if so, for determination of appellant’s representation on
appeal. On February 9, 2012, we issued an order of continuing abatement, ordering the
trial court to ﬁle an amended certiﬁcation. No ﬁndings or amended certiﬁcations have
been ﬁled.

' 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(t), 34.5(c), 37.1.

In addition, if the appellant has the right of appeal and still desires to pursue this

~ appeal, he is entitled to court-appointed counsel. See TEX. CRIM. PROC. ANN. art.

1.051(d)(1), 26.04.(p) (West Supp. 2011); Ward v. State, 74.0 S.W.2d 794, 798 (Tex. Crim.

App. 1987); Lopez v. State, 486 S.W.2d 559, 560 (Tex. Grim. App. 1972); Fowler v. State,
874 S.W.2d 112, 114 (Tex. App.—Austin 1994, order, pet. ref’d).

We, therefore, abate this appeal and remand the cause to the trial court for further

proceedings. On remand, the trial court shall conduct a hearing within 15 days of the date
of this order at which a representative of the Harris County District Attorney’s Ofﬁce and
appellant’s trial counsel, Jerry Guerinot, shall be present. Appellant shall also be present

certiﬁcation would be “binding in the absence of direct proof of [its] falsity.” Breazeale v.
State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). In this case, however, the trial
com‘t’s'certiﬁcation was executed on July 29, 2009, which was almost three months before
the appellant was sentenced on October 19, 2009. Therefore, the trial court could not have
based its statement in the certiﬁcation that appellant had waived his right of appeal on a
post-sentencing oral waiver, because appellant had not been sentenced when the -
certiﬁcation was executed. Further, the trial court’s judgment contains no indication that
appellant waived the right to appeal. Therefore, the record contains no indication that

appellant orally waived the right to appeal aﬁer sentence was imposed.
2

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.2 ‘

We direct the trial court to:

l) Execute an amended certiﬁcation of appellant’s right to appeal indicating
that appellant has the right of appeal;

2) Determine whether appellant still wishes to pursue this appeal;

3) Determine whether appellant’s counsel, Jerry Guerinot, intends to represent
appellant on appeal or whether counsel should be permitted to withdraw;

4) If counsel is permitted to withdraw, determine whether appellant, aﬁer being
admonished regarding the dangers and disadvantages of self-representation,
is knowingly and voluntarily waiving his right to appointed counsel on
appeal and is proceeding pro se, and .

a. If so, the trial court shall obtain a written waiver of the right to counsel

from appellant; or
b. If not, the trial court shall appoint appellate counsel; and

5) Set a deadline for the ﬁling of appellant's brief by either appellant, appointed '
counsel, or counsel Jerry Guerinot, as appropriate, which deadline must be
no more than 30 days from the date of the hearing on this order, regardless of -
whether the appeal has yet been reinstated.

See TEX. CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (t) (granting right to representation by
counsel in criminal matters; entitling indigent defendant in criminal proceeding to
appointed counsel; entitling indigent defendant to appointed counsel for appeal to court of
appeals; and authorizing written waiver of right to counsel if made voluntarily and
intelligently); 26.04U)(2) (requiring appointed attorney to “represent the defendant until
charges are dismissed, the defendant is acquitted, appeals are exhausted, or. the attorney is‘
permitted or ordered by the court to withdraw as counsel for the defendant after a ﬁnding of
good cause is entered on the recor ”); 26.04(p) (“A defendant who is determined by the
court to be indigent is presumed to remain indigent for the remainder of the proceedings in
the case unless a material change in the defendant’s ﬁnancial circumstances occurs”);
Ward, 740 S.W.2d at 798 (requiring that, after permitting appointed trial counsel to
withdraw, trial court must either ﬁnd that appellant is knowingly and voluntarily waiving
right to appointed counsel or appoint appellate counsel); Lopez, 486 S.W.2d at 560 (same);
Fowler, 874 S.W.2d at .1 14 (“When a trial court permits appointed counsel to withdraw,

2 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.
3

that court must appoint substitute counsel in the absence of a clear showing in the record
that the defendant is no longer indigent or that the defendant desires to represent himself.”);
cf. TEX. CRIM. PROC. ANN. art. 1.051(g) (requiring court to advise defendant in trial court
of dangers and disadvantages of self—representation prior to proceeding to trial).

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 20 days of the date of
this order. The court reporter is directed to ﬁle the reporter’s record of the hearing within
20 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 20 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/ Justice Harvey Brown
[21 Acting individually El Acting for the Court

Date: June 18, 2012

