Eli Blue Hernandez v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00255-CR

Eli Blue Hernandez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. D-1-DC-10-206973, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING

MEMORANDUM OPINION

PER CURIAM

Appellant Eli Blue Hernandez pleaded guilty to the offense of possession of a

controlled substance cocaine and the district court placed him on deferred-adjudication community

supervision for a period of eight years. Subsequently, the State filed a motion to proceed with an

adjudication of guilt, based, in part, on an allegation that Hernandez had committed the subsequent

criminal offense of possession of a controlled substance. Hernandez pleaded true to the allegations

in the motion to adjudicate and was sentenced to five years’ imprisonment. This appeal followed.

The rules of appellate procedure provide, “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.”

Tex. R. App. P. 25.2(a)(2). We are required “to examine a certification for defectiveness, and to

use Rules 37.1 and 34.5(c) to obtain another certification, whenever appropriate.” Dears v. State,

154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (citing Tex. R. App. P. 37.1, 34.5(c)). A defective

certification is one “which is correct in form but which, when compared with the record before the

court, proves to be inaccurate.” Id.

We previously abated this appeal because the certification did not appear to

conform to the record. The certification had indicated that this was a plea-bargain case, but the

record indicated that it was not a plea-bargain case. See Hargesheimer v. State, 182 S.W.3d 906, 909

(Tex. Crim. App. 2006) (holding that case in which defendant pleads true to allegations in

motion to adjudicate is not considered plea-bargain case for purposes of rule 25.2(a)(2)). We have

now received an amended certification from the district court that indicates the defendant “has

waived the right of appeal.”

The record does indeed contain a document entitled “Defendant’s Plea of True, etc.

to State’s Motion to Adjudicate Guilt,” signed by Hernandez, in which he agrees to waive certain

rights. In that same document, however, Hernandez conspicuously does not agree to waive his right

of appeal but, to the contrary, agrees to the following affirmative acknowledgment of that right:

I further understand that in the event my probation is revoked I have the legal right

to appeal to the Court of Appeals of Texas, and also the right to be represented on

appeal by an attorney of my choice or if I am too poor to pay for such an attorney or

the record on appeal, the Court will, without expense to me provide an attorney and

a proper record for such an appeal.

In light of the apparent discrepancy between the amended certification and the record,

we are compelled by the foregoing authorities to again abate the appeal and remand the cause to the

district court for entry of an amended certification addressing Hernandez’s right of appeal from the

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judgment adjudicating guilt. Once entered, the certification shall be included in a supplemental

clerk’s record and filed with this Court no later than September 3, 2013.1

Before Chief Justice Jones, Justices Pemberton and Field

Abated

Filed: August 23, 2013

Do Not Publish

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We have also received various pro se motions from Hernandez, including a motion for

appointment of counsel, a motion for extension of time to file his brief, and a motion to proceed in

forma pauperis. We dismiss these motions as moot. If the district court determines that Hernandez

has the right of appeal, and it further determines that Hernandez is indigent, then the district court

shall appoint Hernandez counsel on appeal.

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