Elton Davis III v. State

• Court: Court of Appeals of Texas
• Decided: January 30, 2014
• Docket: 09-13-00475-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-13-00475-CR ____________________

ELTON DAVIS III, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 99119 __________________________________________________________________

ORDER

Pursuant to a plea bargain agreement, appellant Elton Davis III pleaded

guilty to possession of a controlled substance, and the trial court placed Davis on

deferred adjudication community supervision for three years. The State

subsequently filed a motion to revoke Davis’s deferred adjudication community

supervision, and Davis pleaded “true” to one violation of the terms of his

community supervision. The trial court signed a judgment adjudicating guilt, in

which it sentenced Davis to five years of confinement, but suspended the sentence

1 and placed Davis on community supervision for five years. On June 12, 2013, the

State filed a motion to revoke Davis’s community supervision. Davis pleaded

“true” to two violations of the terms of his community supervision. Davis and the

State entered into an “Agreed Punishment Recommendation” that provided

prosecution would proceed only on counts two, three, and four of the motion to

revoke. The trial court signed a judgment that revoked Davis’s community

supervision and sentenced Davis to five years of confinement.

The trial court signed a certification stating that this is a plea bargain case

and Davis has no right of appeal. “[I]n the context of revocation proceedings, the

legislature has not authorized binding plea agreements. . . .” Gutierrez v. State, 108

S.W.3d 304, 309 (Tex. Crim. App. 2003). Because this case involves a purported

plea-bargain agreement in a revocation proceeding, the record does not support the

trial court’s certification that Davis does not have the right to appeal. See Dears v.

State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005) (“[A]n appellate court has

the ability to examine a certification for defectiveness, and to use Rules 37.1 and

34.5(c) to obtain another certification, whenever appropriate. . . . If the court

chooses to examine a certification after the record is filed, it has the ability to

compare the certification to the record and . . . a duty to do so.”).

We abate the appeal and remand the case to the trial court to reevaluate its

certification of Davis’s right to appeal, appoint appellate counsel to represent

2 Davis, and file a supplemental clerk’s record by March 3, 2014. See Tex. R. App.

P. 34.5(c), 37.1.

ORDER ENTERED January 30, 2014.

PER CURIAM

Before McKeithen, C.J., Kreger and Johnson, JJ.