NO. 07-04-0008-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 23, 2004
______________________________
DAVID RAMOS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 46,215-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.1
MEMORANDUM OPINION
Pursuant to the State’s motion to proceed with an adjudication of guilt on the original
charge of possession of a controlled substance for numerous violations of the conditions
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
of his community supervision, appellant pled true without a recommendation on
punishment. Following a hearing on the State’s motion, the trial court sentenced appellant
to 20 years confinement. Pending before this Court is the State’s motion to abate this
appeal and remand the cause to the trial court with directions to re-certify David Ramos’s
right of appeal. Although no clerk’s record has been filed to date, the State has provided
us with certified copies of the necessary documents to dispose of its motion. We grant the
motion.
Without a recommendation on punishment, appellant signed a document entitled
“Defendant’s Plea on Community Supervision Revocation” in which he averred he freely,
knowingly, and voluntarily waived any right to appeal he may have. Pursuant to Rule
25.2(a)(2) of the Texas Rules of Appellate Procedure which requires the trial court to enter
a certification of the defendant’s right of appeal, the court certified that “defendant has
waived the right of appeal.” A pre-sentence waiver of the right to appeal without a plea
agreement or a recommendation cannot be knowingly and intelligently made and is not
binding on a defendant. Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Cr.App. 1977).
Relying on this Court’s decision in Hargesheimer v. State, No. 07-03-0544-CR, 2004
WL 112628, at *1 (Tex.App.–Amarillo Jan. 23, 2004, no pet. h.), the State now moves that
we abate the appeal and remand the cause to the trial court with directions to re-certify
whether appellant has a right to appeal. See Tex. R. App. P. 2, 34.5(c)(2), and 37.1. In
Hargesheimer, the State filed a motion to dismiss the appeal based on the trial court’s
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certification that the defendant had waived the right to appeal. We denied the motion
without prejudice and, based on an invalid pre-sentence waiver of the right to appeal
without a plea bargain or a recommendation on punishment, we abated the appeal and
remanded the cause for the trial court to re-certify the defendant’s right to appeal. Based
on Thomas and Hargesheimer, we agree with the State that this appeal must be abated
and the cause remanded to the trial court with directions to re-certify whether appellant has
the right to appeal. Should the trial court determine that appellant does have the right to
appeal, it shall execute a certification indicating so and conduct a hearing after notice to
the parties to determine the following:
1. whether appellant desires to prosecute an appeal; and
2. whether appellant is indigent and entitled to appointed counsel.
The trial court shall cause the hearing, if any, to be transcribed. If appellant desires to
continue this appeal and is entitled to appointed counsel, the trial court shall enter an order
appointing counsel and include counsel’s name, address, state bar number, telephone
number, and facsimile number.
Finally, the re-certification and order appointing counsel, if any, shall be included in
a supplemental clerk’s record. A transcription of the hearing, if any, must be included in
a supplemental reporter’s record. Both the supplemental clerk’s and reporter’s record must
be filed with the Clerk of this Court on or before Monday, April 26, 2004. Should the trial
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court require more time to comply with the directions of this Court, it must request an
extension prior to April 26, 2004.
Accordingly, the appeal is abated and the cause is remanded for further
proceedings.
Per Curiam
Do not publish.
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