COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Abel Vasquez v. The State of Texas
Appellate case number: 01-22-00326-CR
Trial court case number: 1671983
Trial court: 351st District Court of Harris County
Appellant pleaded guilty, without an agreed recommendation from the State regarding
punishment, to the offense of indecency with a child by contact. The record contains a certification
of the defendant’s right to appeal providing that defendant has no right of appeal. However, the
certification also contains a handwritten note, stating: “Waiver appeal plea only. Corrected on
record 4/26/22.”
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.
Appellant signed a “Waiver of Constitutional Rights, Agreement to Stipulation, and
Judicial Confession,” stating:
I understand that I have not reached an agreement with the prosecutor as to
punishment. However, in exchange for the State waiving their right to a jury trial,
I intend to enter a plea of guilty without an agreed recommendation of punishment
from the prosecutor and request that my punishment should be set by the Judge
after a pre-sentence investigation report and hearing. I understand the state reserves
the right to argue for full punishment at my sentencing hearing. I waive any further
time to prepare for trial to which I or my attorney may be entitled. Further, in
exchange for the state giving up their right to trial, I agree to waive any right of
appeal which I may have.
Rule 25.2(a)(2) indicates that in a case in which the defendant voluntarily pleads guilty,
the defendant may appeal only those matters that were raised by written motion filed and ruled on
before trial or after getting the trial court’s permission. See TEX. R. APP. P. 25.2(a)(2). Although
the trial court checked the box for waiver of the right to appeal, a handwritten note mentions waiver
of “plea only.” Therefore, the Court is unable to determine whether the trial court intended to
conclude that appellant waived his right to appeal or that appellant waived his right to appeal the
plea of guilty only.
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 20 days of the date of this
order at which a representative of the Harris County District Attorney’s Office shall be present.
Appellant is not currently represented by counsel, but he 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.
We direct the trial court to:
1) Make a finding regarding whether or not appellant has the right to appeal under Rule
25.2(a)(2)(A);
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.
Appellant requested appointment of counsel at the time sentence was pronounced and no
counsel was appointed. Therefore, if the trial court determines that appellant has a right of appeal,
counsel shall be appointed, and this appointment shall be included in the record.
The trial court shall have a court reporter, or court recorder, record the hearing. The trial
court clerk is directed to file a supplemental clerk’s record 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.
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/ Richard Hightower______
Acting individually Acting for the Court
Date: ____February 14, 2023_____