COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Appellate case name: Brandon Marquice Wilson v. The State of Texas
Appellate case number: 01-10-00434-CR
Trial court case number: 1190812
Trial court: 179th District Court of Harris County
On May 31, 2012, we abated this case and remanded it to the trial court “for the trial
court to appoint new appellate counsel or, if appellant wishes, allow appellant to proceed pro se.”
In response, the trial court issued an “Order on Abatement.”
In its order, the trial court found that the “Certification of Defendant’s Right of Appeal”
entered on November 11, 2010 was erroneously entered. The trial court further found that
appellant “waived his right of appeal on April 1, 2009, as is reflected by the Trial Court’s
Certification of Defendant’s Right of Appeal entered on that date.” The record reflects that
appellant originally pleaded guilty on April 1, 2009, in exchange for a recommendation from the
State that the trial court defer adjudication of appellant’s guilt and place appellant on community
supervision. The certification of appellant’s right to appeal, executed on April 1, 2009, applied
to this plea-bargain agreement. See TEX. R. APP. P. 25.2(a)(2) (“The trial court shall enter a
certification of the defendant’s right of appeal each time it enters a judgment of guilt or other
appealable order.”); Hargesheimer v. State, 182 S.W.3d 906, 912 (Tex. Crim. App. 2006).
Subsequently, the State moved to adjudicate appellant’s guilt and, on April 14, 2010, appellant
was adjudicated guilty and sentenced to 12 years’ imprisonment. Although appellant pleaded
true to the allegations in the motion to adjudicate, his plea at the revocation hearing did not
impose any restrictions on his right to appeal. See TEX. R. APP. P. 25.2(a)(2) (imposing
restrictions on appeals from pleas of guilty or nolo contendere with agreed punishment
recommendations); Hargesheimer, 182 S.W.3d at 912, 913; Dears v. State, 154 S.W.3d 610, 613
(Tex. Crim. App. 2005). Further, the record does not reflect that appellant waived his right to
appeal from the decision to adjudicate his guilt. On November 11, 2010, the trial court executed
a certification of appellant’s right to appeal from the order adjudicating appellant’s guilt, which
correctly states that appellant has the right of appeal. See TEX. R. APP. P. 25.2(a)(2);
Hargesheimer, 182 S.W.3d at 913. Therefore, because the record contains a certification of
appellant’s right to appeal that correctly states appellant has such a right, we are able to exercise
jurisdiction over this case. See TEX. R. APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 679
(Tex. Crim. App. 2006).
In its order on abatement, the trial court also found that the appellant “intentionally failed
to timely file notice of appeal” and that “[t]his is not the case where the notice was timely
delivered to jail authorities.” The record presently before the Court, however, does not contain
evidence to support these findings but is in fact unclear as to whether appellant’s notice of appeal
was timely or not. The trial court entered its judgment adjudicating appellant’s guilt on April 14,
2010. Appellant’s notice of appeal was therefore due on Friday, May 14, 2010. See TEX. R.
APP. P. 26.2(a)(1). Appellant, proceeding pro se, filed a notice of appeal that was not post-
marked until Monday, May 17, 2010 and not filed by the district clerk until Wednesday, May 19,
2010. Nevertheless, if appellant delivered the notice to prison authorities on or before May 14,
2010, his notice was timely under the “prisoner mailbox rule.” See Campbell v. State, 320
S.W.3d 338, 342 (Tex. Crim. App. 2010); see also TEX. R. APP. P. 9.2(b), 26.2(a). The record
contains no indication, however, regarding when appellant delivered his notice of appeal to
prison authorities.
Accordingly, we ORDER the trial court to appoint new appellate counsel to represent
appellant. Counsel’s brief will be due 30 days from the date of the trial court’s order of
appointment. See TEX. R. APP. P. 38.6(a).
Judge’s signature:/s/ Justice Terry Jennings
Acting individually Acting for the Court
Date: August 27, 2012