Nathan Maxwell v. State

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Nathan Maxwell v. The State of Texas

Appellate case number: 01-16-00672-CR

Trial court case number: 16-DCR-073827

Trial court: 434th District Court of Fort Bend County

Appellant, Nathan Maxwell, pled guilty, without an agreed recommendations as to

punishment, to the felony offense of aggravated sexual assault of a child. As part of his

plea, appellant signed the trial court’s written admonishments. The trial court signed an

order on May 27, 2016, accepting Maxwell’s plea. A jury decided punishment and the

trial court signed a judgment of conviction in accordance with the jury’s verdict,

sentencing Maxwell to 70 years in the Institutional Division of the Texas Department of

Criminal Justice. The trial court signed a certification of defendant’s right to appeal and

marked two boxes: that this was a plea-bargain case and Maxwell had no right to appeal

and that Maxwell waived the right to appeal.

The record reflects a plea of guilty, but it does not show an agreement or that the

plea was made in exchange for the State’s recommendation for sentencing. In fact, the

record shows that a jury decided Maxwell’s sentence. Thus, it appears that this is not a

plea-bargain case.

Additionally, the record contains no waiver of the right to appeal. Further, 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). A waiver

may be valid “if the record showed that the defendant received consideration for his

waiver pursuant to a plea agreement.” Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim.

App. 2016). There is no indication in the record that the State gave any consideration for

a waiver of Maxwell’s right of appeal. See Ex parte Broadway, 301 S.W.3d 694, 697–98

(Tex. Crim. App. 2009) (holding Delaney rule distinguishable because State gave

consideration for waiver of right to 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 20 days of

the date of this order at which a representative of the Fort Bend 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.*

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 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.

* 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.

It is so ORDERED.

Judge’s signature: _/s/ Harvey Brown

Acting individually

Date: October 6, 2016