NUMBER 13-13-00617-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KARDELL LAMONT JONES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 26th District Court
of Williamson County, Texas.
ORDER OF ABATEMENT
Before Justices Rodriguez, Garza and Perkes
Order Per Curiam
Appellant, Kardell LaMont Jones, filed a notice of appeal from his conviction in
trial court cause number 12-1086-K26. The trial court’s certification of the defendant's
right to appeal stated that the defendant does not have the right to appeal. See TEX. R.
APP. P. 25.2(a)(2). Accordingly, on November 13, 2013, we ordered appellant’s lead
appellate counsel to, within thirty days: (1) review the record; (2) determine whether
appellant has a right to appeal; and (3) forward to this Court, by letter, counsel’s findings
as to whether appellant has a right to appeal and/or advise this Court as to the
existence of any amended certification. We further ordered counsel, if she determined
that appellant has a right to appeal, to file a motion with this Court within thirty days
identifying and explaining substantive reasons why appellant has a right to appeal.
Counsel has filed a motion explaining why appellant has a right to appeal in the
instant case and arguing that the certification included in the record is therefore
incorrect. Counsel moved to abate the appeal in order to obtain an amended
certification from the trial court. We will grant the motion.
In Ex parte Thomas, the Texas Court of Criminal Appeals held that “waiver of the
right of appeal made prior to trial, as a matter of law, cannot be knowingly and
intelligently made and such a waiver is not binding on defendant.” 545 S.W.2d 469, 470
(Tex. Crim. App. 1977). Thomas has since been abrogated with respect to cases where
the State, in exchange for the defendant’s waiver of right to appeal, agreed to make a
sentencing recommendation to the trial court. See, e.g., Blanco v. State, 18 S.W.3d
218, 219–20 (Tex. Crim. App. 2000) (noting that that “the considerations that led to our
decisions in pretrial-waiver-of-the-right-to-appeal cases . . . are less compelling in cases
like this at least where the trial court follows the prosecution’s sentencing
recommendation”). Here, appellant pleaded true to allegations that he violated the
terms of his community supervision. He formally waived his right to appeal on July 8,
2013. Adjudication and sentencing took place on August 18, 2013. Appellant’s waiver
was not made in exchange for the State’s sentencing recommendation; instead, the
record reflects that the State made no recommendation as to appellant’s sentence.
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Accordingly, the rule pronounced in Ex parte Thomas applies. Appellant’s waiver of
right to appeal was invalid because it was made prior to trial and sentencing.
“[A]uthority obligates us to take appropriate action under Texas Rule of Appellate
Procedure 37.1 when defects are discovered and are not corrected by the parties.”
Hargesheimer v. State, 126 S.W.3d 658, 659 (Tex. App.—Amarillo 2004, pet. ref’d). “A
certification that the appellant waived his right to appeal when the waiver is invalid as a
matter of law is one such defect in the certification.” Id. at 659–60. Accordingly, we
hereby DENY, without prejudice, the State's motion to dismiss; GRANT appellant’s
motion to abate; ABATE the appeal until further order of this Court; and REMAND the
cause to the trial court with directions to re-certify whether appellant has a right to
appeal on or before thirty days from the date of this order. See TEX. R. APP. P. 37.1.
The trial court’s re-certification must be included in a supplemental clerk's record filed
with the clerk of this Court on or before 45 days from the date of this order. See TEX. R.
APP. P. 34.5(c)(2). The parties to the appeal are hereby notified that, if no such re-
certification is filed with the clerk of this Court as prescribed herein, the appeal will be
dismissed. See TEX. R. APP. P. 37.1.
IT IS SO ORDERED.
PER CURIAM
Do Not Publish.
TEX. R. APP. P. 47.2(b)
Order delivered and filed the
8th day of January, 2014.
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