David Martin Schmitt v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00378-CR

DAVID MARTIN SCHMITT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 66,873-A, Honorable Dan L. Schaap, Presiding

December 4, 2018

ORDER OF ABATEMENT AND REMAND Before CAMPBELL and PIRTLE and PARKER, JJ.

We previously remanded this cause on October 19, 2018, for the trial court to

prepare an amended certification of appellant’s right of appeal consistent with the record.

The trial court’s certification provides that appellant has the right of appeal, but the record

includes a waiver of appeal signed by appellant. We directed the trial court to file an

amended certification by November 19, but the trial court has not responded to our order.

On November 6, appellant’s trial counsel filed an affidavit with the district clerk stating that the waiver “was inadvertently signed” by appellant and that appellant “did not intend

to waive any right of appeal.” That affidavit was filed with this Court on November 28.

Based on the representations of appellant’s trial counsel, we have reinstated the

appeal, and now abate the appeal and remand the cause to the 47th District Court of

Potter County for further proceedings. Upon remand, the trial court shall conduct a

hearing to determine whether appellant voluntarily, knowingly, and intelligently waived his

right of appeal. See Monreal v. State, 99 S.W.3d 615, 621 (Tex. Crim. App. 2003). The

trial court shall issue findings of fact and conclusions of law on this matter. Should the

trial court determine that the waiver was made voluntarily, knowingly, and intelligently, it

shall also prepare an amended certification consistent with the record. See TEX. R. APP.

P. 25.2(f).

The trial court shall cause to be developed (1) a supplemental clerk’s record

containing its findings, conclusions, and any amended certification, and (2) a reporter’s

record transcribing any evidence and argument presented at the hearing. TEX. R. APP. P.

34.5(c)(2). The record shall be filed with the Clerk of this Court on or before January 3,

2019. Should further time be needed to perform these tasks, then same must be

requested before January 3, 2019.

It is so ordered.

Per Curiam

Do not publish.