Opinion
No. 04-15-00788-CR
01-08-2016
Raymond WARD, Jr., Appellant v. The STATE of Texas, Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 15-0238-CR-C
The Honorable William Old, Judge Presiding
ORDER
Initial review of the record in this case revealed the trial court's certification states, "this criminal case is a plea-bargain case, and the defendant has NO right of appeal." The record contains a plea agreement and the reporter's record of the plea hearing which reveal appellant was admonished of the possible sentence range. Appellant's sentence does not exceed the noticed range of sentencing.
On December 18, 2015, this Court ordered appellant to amend the record to include a trial court certification showing appellant has the right of appeal. See TEX. R. APP. P. 25.2(d); 37.1; see also Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005); Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, no pet.). On December 30, 2015, appellant filed a letter raising the issue whether he was properly admonished of his possible sentence range and whether he voluntarily entered into a plea agreement.
Further review of the record of the plea hearing reveals appellant entered an open plea, which carries a limited right to appeal. The record of the plea hearing also indicates appellant entered a plea agreement. See Dorsey v. State, 55 S.W.3d 227, 230 (Tex. App.—Corpus Christi 2001, no pet.); Ozuniga v. State, No. 04-03-00464-CR, 2004 WL 297989, at *1 (Tex. App.—San Antonio Feb. 18, 2004, no pet.)(unpublished). However, the sentencing range included in the plea agreement was no different than the applicable sentencing range if no agreement had been entered. Thus, appellant was sentenced as if he entered an open plea and did not enter a plea agreement. Further, the record indicates that as part of the plea agreement, appellant's sentence was enhanced from a third degree felony to a second degree felony.
This Court has authority to ensure an accurate certification of a defendant's right to appeal is included in the record. See TEX. R. APP. P. 25.2(d),(f), 37.1. Because the record is not clear whether appellant entered an open plea or a plea agreement, it is ORDERED the trial court shall hold a hearing in this cause to determine whether appellant knowingly entered into a valid plea agreement or whether he entered an open plea. The trial court shall hold a hearing within 30 days of the date of this order to make the determination. If the trial court determines appellant knowingly entered a valid plea agreement, the terms of this agreement shall be accurately reflected in the record. The trial court shall order the reporter's record of the hearing to be included in the appellate record and shall order supplementation of the clerk's record to include an accurate indication of the trial court's determination and any documentation supporting the determination. In addition, the trial court shall provide a supplemental certification of the right to appeal. See TEX. R. APP. P. 25.2(d).
/s/_________
Jason Pulliam, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 8th day of January, 2016.
/s/_________
Keith E. Hottle
Clerk of Court