Christopher Napier v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS §

CHRISTOPHER NAPIER, § No. 08-18-00050-CR

Appellant, § Appeal from the

v. § 243rd District Court

THE STATE OF TEXAS, § of El Paso County, Texas

State. § (TC# 20170D04503)

§ ORDER

In its certification of the defendant’s right to appeal, the trial court indicated that “this is a

plea bargain case, and the defendant has NO right of appeal.” The Rules of Appellate Procedure

require us to dismiss this appeal unless we find that the certification is defective. See

TEX.R.APP.P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex.Crim.App. 2005). After

reviewing the responses of the parties and the record, we conclude that the trial court did not

follow the plea bargain between the parties and what began as a negotiated plea was converted to

an open plea. As a result, the waiver of the right to appeal executed by Appellant is

unenforceable. We conclude that the certification entered by the trial court is defective because

it is not supported by the record.

Accordingly, we abate the appeal and remand the cause to the trial court to enter a new

certification of the defendant’s right to appeal. Given that Appellant has already been advised of

1 his rights to appeal and to file a petition for discretionary review, the trial court is not required to

obtain Appellant’s signature on the certification. The trial court shall file the new certification

with the trial court clerk no later than July 24, 2018. The trial court clerk shall prepare and file a

supplemental clerk’s record containing the new certification of the defendant’s right to appeal no

later than August 3, 2018.

IT IS SO ORDERED this 9th day of July, 2018.

PER CURIAM

Before McClure, C.J., Rodriguez and Palafox, JJ.