Raul R. Ricoy v. State

Opinion

Order entered June 17, 2013

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01300-CR

RAUL R. RICOY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-54024-P

ORDER The trial court’s certification reflects that appellant waived his right to appeal. After

reviewing the record, the Court questions the accuracy of the certification. Specifically, although

the plea form signed at the hearing on the State’s motion to adjudicate guilt has the box checked

that states appellant waives his right to appeal, the record reflects that appellant pleaded true to

the allegations in the motion to adjudicate without benefit of a plea bargain. The hearing on the

motion to adjudicate was conducted on one day and the trial court sentenced appellant on a

different day. Nothing in the record reflects any agreement between appellant and the State as to

the sentence imposed, nor does the record contain anything to show appellant waived his right to

appeal after he knew what his sentence would be. Therefore, it appears the certification may be

incorrect. Additionally, appellant’s brief is overdue. Accordingly, we ORDER the trial court to conduct a hearing to determine why

appellant’s brief has not been filed. In this regard, the trial court shall make appropriate findings

and recommendations and determine the following:

 Whether appellant waived his right to appeal in conjunction with a plea agreement with the State or after appellant was aware of the sentence that would be imposed. See Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006); Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000). If the trial court determines that appellant waived his right to appeal in one of the manners set out above, it shall make a finding to that effect.

 If the trial court determines appellant did not waive his right to appeal, the trial court shall prepare an amended rule 25.2(d) certification that accurately reflects the trial court proceedings.

 The trial court shall next determine whether appellant desires to prosecute the appeal, whether appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeal. See TEX. R. APP. P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the trial court shall conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.–Corpus Christi 1987, no pet.) (per curiam).

We ORDER the trial court to transmit a record of the proceedings, which shall include

written findings and recommendations, any orders, and any supporting documentation, to this

Court within THIRTY DAYS of the date of this order.

This appeal is ABATED to allow the trial court to comply with the above order. The

appeal shall be reinstated thirty days from the date of this order or when the findings are

received, whichever is earlier.

/s/ LANA MYERS JUSTICE