      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00184-CR



                                Gary Eugene Franklin, Appellant

                                                   v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
           NO. 933724, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                                            OPINION


                Gary Franklin was placed on deferred adjudication supervision after he pleaded guilty

to sexually assaulting a child. Franklin has now been adjudicated guilty and he seeks to appeal. The

trial court has certified that this is a plea bargain case and Franklin has no right of appeal. See Tex.

R. App. P. 25.2(a)(2).

                A defendant who plea bargains for deferred adjudication has a right to appeal,

following a subsequent adjudication, issues unrelated to the conviction but no right to appeal issues

related to the conviction. Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002); Kirtley v.

State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001); Vidaurri v. State, 49 S.W.3d 711, 884-85 (Tex.

Crim. App. 2001). The form promulgated by the court of criminal appeals to certify the defendant’s

right of appeal does not provide for this conditional right of appeal. See Tex. R. App. P. appendix

(found at Tex. R. App. P. 25.2, notes and comments (West 2003)); and see Kahookele v. State, No.
03-04-00493-CR (Tex. App.—Austin May 12, 2005, no pet. h.); Carroll v. State, 119 S.W.3d 838,

840 (Tex. App.—San Antonio 2003, no pet.).

                The trial court’s certification that Franklin has no right of appeal is incorrect and

therefore defective. See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (inaccurate

certification is defective). We abate the appeal for ten days and instruct the trial court to prepare and

send to this Court an amended certification that accurately reflects Franklin’s conditional right of

appeal. Tex. R. App. P. 37.1; see Dears, 154 S.W.3d at 614. The certification should state that there

was a plea bargain for deferred adjudication, but following an adjudication of guilt the defendant has

the right of appeal as to issues unrelated to the conviction. See Kahookele, slip op. at 5-6.

                The appeal is abated.




                                                __________________________________________

                                                W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Filed: May 16, 2005

Publish




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