NO. 07-11-00408-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
DECEMBER 2, 2011
ROBERT SMALL, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 272ND DISTRICT COURT OF BRAZOS COUNTY;
NO. 10-01875-CRF-272; HONORABLE TRAVIS B. BRYAN III, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER OF ABATEMENT AND REMAND
Appellant, Robert Small, Jr., appeals from a judgment convicting him of
obstruction or retaliation, and sentence of three years’ incarceration in the Institutional
Division of the Texas Department of Criminal Justice. Our review of the clerk’s record
indicates that there is either no certification of defendant’s right of appeal or that the
certification is defective. Therefore, we now abate and remand this appeal.
Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall
enter a certification of defendant=s right of appeal each time it enters a judgment of guilt
or other appealable order. TEX. R. APP. P. 25.2(a)(2); Hargesheimer v. State, 182
S.W.3d 906, 911 (Tex.Crim.App. 2006). An appeal must be dismissed if a certification
that shows the defendant has the right of appeal has not been made part of the record
under the applicable rules. TEX. R. APP. P. 25.2(d). An appellate court that has an
appellate record that includes a certification is obligated to review the record to
ascertain whether the certification is defective. Dears v. State, 154 S.W.3d 610, 615
(Tex.Crim.App. 2005).
It appears that, on October 25, 2010, appellant entered into a plea agreement to
plead guilty to the indicted offense and true to an enhancement paragraph contained
within the indictment in exchange for a recommendation from the district attorney of a
three year sentence of incarceration.1 On the basis of this plea agreement, the trial
court entered a certification that this case was a plea bargain case and defendant does
not have a right of appeal, and that defendant waived his right of appeal.2 This
certification is in the proper form and is signed by the trial court, defendant, and
defendant’s counsel.
However, in April of 2011, appellant and appointed counsel requested that
appointed counsel be allowed to withdraw from further representation of appellant. By
order dated April 29, 2011, the trial court granted these requests and permitted counsel
1
The Plea Agreement was signed by appellant, appellant’s trial counsel, and the
assistant district attorney on October 25, 2010. This document was signed by the
presiding judge on July 29, 2011.
2
The inference that this certification is based exclusively on appellant’s plea
agreement is premised on the fact that this certification is dated October 25, 2010.
However, the judgment indicates that sentence was not imposed until July 29, 2011.
Therefore, it is clear that the October 25, 2010 Certification of Defendant’s Right of
Appeal was not entered at the time that judgment of guilt was entered. See TEX. R.
APP. P. 25.2(a)(2); Hargesheimer, 182 S.W.3d at 911.
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to withdraw. On that same date, the trial court appointed Mark R. Maltsberger to
represent appellant. On July 20, Maltsberger filed a motion to withdraw appellant’s plea
of guilty. The trial court denied appellant’s motion to withdraw his plea of guilty by order
dated July 29. Also on July 29, the trial court entered judgment of conviction against
appellant on the basis of his plea agreement finding him guilty of obstruction or
retaliation, finding the enhancement paragraph true, and sentencing appellant to three
years incarceration in the Institutional Division of the Texas Department of Criminal
Justice. The clerk’s record does not contain a certification of defendant’s right of appeal
entered at the time the judgment of guilt was entered in this case.
The clerk’s record does include a subsequent certification that indicates that this
case is a plea bargain case, but that issues were raised by written motion that were filed
and ruled on before trial that were not withdrawn or waived. However, this certification
is not signed by the trial court or appellant. The clerk’s record appears to confirm that
appellant did raise the issue of the voluntariness of his plea by written motion that was
filed and denied before trial, and that this issue was not withdrawn or waived. As such,
it would appear that appellant has a right to appeal this issue. Consequently, the record
reflects that, while this was a plea bargain case, appellant has a limited right to appeal
the issue of the voluntariness of his plea of guilty based on his written motion filed
before trial and not withdrawn or waived. As such, it appears that the trial court’s
subsequent certification of defendant’s right of appeal is defective. See Dears, 154
S.W.3d at 614.
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As such, we now abate this appeal and remand the cause to the trial court for
further proceedings. Upon remand, the trial court shall utilize whatever means
necessary to secure a certification of defendant=s right of appeal that complies with Rule
25.2(d). Once properly executed, the certification shall be included in a supplemental
clerk=s record and filed with the Clerk of this Court on or before January 3, 2012.
This order constitutes notice to all parties of the defective certification pursuant to
Rule 37.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 37.1. If a
supplemental clerk’s record containing a proper certification is not filed in accordance
with this order, this matter will be referred to the Court for dismissal. See TEX. R. APP.
P. 25.2(d).
Per Curiam
Do not publish.
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