Terence Nathaniel Tompkins v. State

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Terence Nathaniel Tompkins v. The State of Texas

Appellate case number: 01-12-00592-CR

Trial court case number: 1337275

Trial court: 232nd District Court of Harris County

The grand jury returned a true bill of indictment against appellant for the state-jail felony

offense of possession of a controlled substance. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.115(a), (b) (West 2010). On February 17, 2012, the trial court appointed the public

defender’s office, who assigned Randy Martin, to represent appellant. On June 11, 2012,

appellant pleaded guilty, and the trial court entered judgment against appellant and executed a

certification of appellant’s right of appeal, indicating both that this “is a plea-bargain case, and

the defendant has NO right of appeal” and that “the defendant has waived the right of appeal.”

Appellant, acting pro se, filed a notice of appeal on June 19, 2012. Although the record contains

no indication that appellant’s counsel moved to withdraw or was permitted to withdraw, no

counsel has appeared on appellant’s behalf in this appeal.

The trial court’s certification of the appellant’s right of appeal is defective. The

certification states that this is a plea-bargain case, but the record contradicts the certification. See

Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (holding that recitations in trial

court records are binding unless record contradicts them). According to both the judgment and

the “waiver of Constitutional rights, agreement to stipulate, and judicial confession,” appellant

did not plead pursuant to a plea bargain, he pleaded “without an agreed recommendation.” See

Blanco v. State, 18 S.W.3d 218, (Tex. Crim. App. 2000). Further, the record does not contain a

written waiver of the right to appeal that was either executed in exchange for some consideration

from the State or after appellant was sentenced. See Ex parte Broadway, 301 S.W.3d 694, 699

(Tex. Crim. App. 2009); Ex parte Delaney, 207 S.W.3d 794, 799–800 (Tex. Crim. App. 2006).

Although appellant could have orally waived the right to appeal after the trial court imposed the

sentence, no reporter’s record has been filed and the record does not otherwise support an oral

waiver. See Monreal v. State, 99 S.W.3d 615, 616 (Tex. Crim. App. 2003); Moreno v. State, 327

S.W.3d 267, 268–69 (Tex. App.—San Antonio 2010, no pet.). Because the certification is

contradicted by the record, we will not presume that appellant waived the right to appeal. See

Breazeale, 683 S.W.2d at 450.

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.

In addition, if the appellant has the right of appeal and still desires to pursue this appeal,

he is entitled to court-appointed counsel. See TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1),

26.04(p) (West Supp. 2011); Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987); Lopez

v. State, 486 S.W.2d 559, 560 (Tex. Crim. App. 1972); Fowler v. State, 874 S.W.2d 112, 114

(Tex. App.—Austin 1994, order, pet. ref’d).

We, therefore, abate this appeal and remand the cause to the trial court for further

proceedings. On remand, the trial court shall conduct a hearing within 15 days of the date of this

order at which a representative of the Harris County District Attorney’s Office and appellant’s

counsel, Randy Martin, 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 whether appellant knowingly and voluntarily made an oral waiver

of the right to appeal after being sentenced;

2) Execute an amended certification of appellant’s right to appeal indicating either

that appellant has the right of appeal or that appellant waived the right to appeal;

3) Determine whether appellant still wishes to pursue this appeal;

4) Determine whether appellant’s counsel, Randy Martin, intends to represent

appellant on appeal or whether counsel should be permitted to withdraw;

5) If counsel is permitted to withdraw, appoint substitute appellate counsel at no

expense to appellant, regardless of whether appellant has waived the right to

appeal;

6) Make any other findings and recommendations the trial court deems appropriate;

and

7) Enter written findings of fact, conclusions of law, and recommendations as to

these issues, separate and apart from any docket sheet notations.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f); 26.04(j)(2); 26.04(p); TEX. R.

APP. P. 25.2(f); Monreal, 99 S.W.3d at 616; Ward, 740 S.W.2d at 798; Lopez, 486 S.W.2d at

560; Moreno, 327 S.W.3d at 268–69; Fowler, 874 S.W.2d at 114.

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,

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.

recommendations, and orders with this Court within 20 days of the date of this order. The court

reporter is directed to file the reporter’s record of the hearing within 20 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 20 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/ Justice Harvey Brown

 Acting individually  Acting for the Court

Date: September 17, 2012