COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Carey Deshawn Forris-Clemons v. The State of Texas
Appellate case number: 01-16-00437-CR
Trial court case number: 1398951
Trial court: 174th District Court of Harris County
Appellant, Carey Deshawn Forris-Clemons, pled guilty, without an agreed
recommendations as to punishment, to the felony offense of injury to a child. As part of
his plea, appellant signed the trial court’s written admonishments which included a
waiver of the right of appeal. On the same date the plea papers were signed, the trial
court completed the certification of the defendant’s right of appeal and marked the box
next to “the defendant has waived the right of appeal.” Adjudication of guilt was
deferred and appellant received 8 years of community supervision and a fine of $200.
The State subsequently moved to adjudicate guilt. On April 8, 2016, the trial court
adjudicated appellant guilty of the felony offense of injury to a child and was sentenced
to 15 years in the Texas Department of Criminal Justice, Institutional Division. The court
noted that appellant pleaded guilty without an agreed recommendation.
The Texas Court of Criminal Appeals has held that when a defendant waives his
right of appeal before sentencing and without an agreement as to punishment, the waiver
is not valid. See Ex parte Delaney, 207 S.W.3d 794, 798 (Tex. Crim. App. 2006). The
court said:
[W]e hold that, in order for a pretrial or presentencing waiver
of the right to appeal to be binding at the punishment phase of
trial, the waiver must be voluntary, knowing, and intelligent.
One way to indicate that the waiver was knowing and
intelligent is for the actual punishment or maximum
punishment to have been determined by a plea agreement
when the waiver was made. However, simply knowing the
range of punishment for the offense is not enough to make the
consequences of a waiver known with certainty, because it
still does not allay the concern that unanticipated errors may
occur at the punishment phase of trial.
Id. at 799. See also Ex parte Broadway, 301 S.W.3d 694, 697-98 (Tex. Crim. App. 2009
(reiterating Delaney rule, but finding it distinguishable where State gave consideration for
the waiver of the right of appeal). Here, there is no indication in the record that the State
gave any consideration for appellant’s waiver of his right of appeal.
The Rules of Appellate Procedure require us to dismiss an appeal unless a
certification showing that the appellant has the right to appeal has been made part of the
record. See TEX. R. APP. P. 25.2(a)(2). The rules also provide that an amended trial
court’s certification of the defendant’s right to appeal correcting a defect or omission may
be filed in the appellate court. See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1. Further, when
we have a record, we are obligated to review the record to ascertain whether the
certification is defective and, if it is defective, we must use Rules 37.1 and 34.5(c) to
obtain a correct certification. Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App.
2005); see TEX. R. APP. P. 34.5(c), 37.1.
Accordingly, we abate this appeal and remand the cause to the trial court for
further proceedings. On remand, the trial court shall conduct a hearing within 30 days of
the date of this order at which a representative of the Harris County District Attorney’s
Office and appellant’s appointed counsel shall be present. Appellant shall also be present
for the hearing in person or, if appellant is incarcerated, at the trial court’s discretion,
appellant may participate in the hearing by use of a closed-circuit video teleconferencing
system that provides for a simultaneous compressed full motion video and interactive
communication of image and sound.1
We direct the trial court to:
1) Make a finding regarding whether or not appellant has the right to appeal;
2) If necessary, execute an amended certification of appellant’s right to appeal;
3) Make any other findings and recommendations the trial court deems
appropriate; and
4) Enter written findings of fact, conclusions of law, and recommendations as
appropriate, separate and apart from any docket sheet notations.
The trial court shall have a court reporter, or court recorder, record the hearing.
The trial court clerk is directed to file supplemental clerk’s records containing the trial
court’s findings, recommendations, and orders with this Court within 35 days of the
date of this order. The court reporter is directed to file the reporter’s record of the
hearing within 35 days of the date of this order. If the hearing is conducted by video
teleconference, a certified recording of the hearing shall also be filed in this Court within
35 days of the date of this order.
1 On request of appellant, appellant and his counsel shall be able to communicate privately
without being recorded or heard by the trial court or the attorney representing the State.
The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when records
that comply with our order are filed with the Clerk of this Court. The court coordinator
of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
Acting individually Acting for the Court
Date: July 21, 2016