Kardell LaMont Jones v. State

• Court: Court of Appeals of Texas
• Decided: January 8, 2014
• Docket: 13-13-00617-CR
• Status: Published

Opinion

NUMBER 13-13-00617-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KARDELL LAMONT JONES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 26th District Court of Williamson County, Texas.

ORDER OF ABATEMENT Before Justices Rodriguez, Garza and Perkes Order Per Curiam Appellant, Kardell LaMont Jones, filed a notice of appeal from his conviction in

trial court cause number 12-1086-K26. The trial court’s certification of the defendant's

right to appeal stated that the defendant does not have the right to appeal. See TEX. R.

APP. P. 25.2(a)(2). Accordingly, on November 13, 2013, we ordered appellant’s lead

appellate counsel to, within thirty days: (1) review the record; (2) determine whether appellant has a right to appeal; and (3) forward to this Court, by letter, counsel’s findings

as to whether appellant has a right to appeal and/or advise this Court as to the

existence of any amended certification. We further ordered counsel, if she determined

that appellant has a right to appeal, to file a motion with this Court within thirty days

identifying and explaining substantive reasons why appellant has a right to appeal.

Counsel has filed a motion explaining why appellant has a right to appeal in the

instant case and arguing that the certification included in the record is therefore

incorrect. Counsel moved to abate the appeal in order to obtain an amended

certification from the trial court. We will grant the motion.

In Ex parte Thomas, the Texas Court of Criminal Appeals held that “waiver of the

right of appeal made prior to trial, as a matter of law, cannot be knowingly and

intelligently made and such a waiver is not binding on defendant.” 545 S.W.2d 469, 470

(Tex. Crim. App. 1977). Thomas has since been abrogated with respect to cases where

the State, in exchange for the defendant’s waiver of right to appeal, agreed to make a

sentencing recommendation to the trial court. See, e.g., Blanco v. State, 18 S.W.3d

218, 219–20 (Tex. Crim. App. 2000) (noting that that “the considerations that led to our

decisions in pretrial-waiver-of-the-right-to-appeal cases . . . are less compelling in cases

like this at least where the trial court follows the prosecution’s sentencing

recommendation”). Here, appellant pleaded true to allegations that he violated the

terms of his community supervision. He formally waived his right to appeal on July 8,

2013. Adjudication and sentencing took place on August 18, 2013. Appellant’s waiver

was not made in exchange for the State’s sentencing recommendation; instead, the

record reflects that the State made no recommendation as to appellant’s sentence.

2 Accordingly, the rule pronounced in Ex parte Thomas applies. Appellant’s waiver of

right to appeal was invalid because it was made prior to trial and sentencing.

“[A]uthority obligates us to take appropriate action under Texas Rule of Appellate

Procedure 37.1 when defects are discovered and are not corrected by the parties.”

Hargesheimer v. State, 126 S.W.3d 658, 659 (Tex. App.—Amarillo 2004, pet. ref’d). “A

certification that the appellant waived his right to appeal when the waiver is invalid as a

matter of law is one such defect in the certification.” Id. at 659–60. Accordingly, we

hereby DENY, without prejudice, the State's motion to dismiss; GRANT appellant’s

motion to abate; ABATE the appeal until further order of this Court; and REMAND the

cause to the trial court with directions to re-certify whether appellant has a right to

appeal on or before thirty days from the date of this order. See TEX. R. APP. P. 37.1.

The trial court’s re-certification must be included in a supplemental clerk's record filed

with the clerk of this Court on or before 45 days from the date of this order. See TEX. R.

APP. P. 34.5(c)(2). The parties to the appeal are hereby notified that, if no such re-

certification is filed with the clerk of this Court as prescribed herein, the appeal will be

dismissed. See TEX. R. APP. P. 37.1.

IT IS SO ORDERED.

PER CURIAM

Do Not Publish. TEX. R. APP. P. 47.2(b) Order delivered and filed the 8th day of January, 2014.