Rebecca Goerdel v. State

• Court: Court of Appeals of Texas
• Decided: July 29, 2019
• Docket: 05-19-00389-CR
• Status: Published

Opinion

Order entered July 29, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00389-CR

REBECCA GOERDEL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-30578-V

ORDER After reviewing the record in this appeal, the Court has questions concerning its

jurisdiction. Specifically, the record shows appellant entered into a plea bargain agreement with

the State. The March 22, 2019 written plea agreement shows appellant agreed to plead guilty

and waive her right to appeal in exchange for an agreed ten-year sentence, probated for nine

years. The reporter’s record reflects the trial court admonished appellant she was waiving her

right to appeal by pleading guilty and that she would not be able to appeal if the trial court

followed the terms of the plea bargain. When asked if she understood, appellant replied “Yes,

sir.” Nevertheless, the clerk’s record contains a March 28, 2019 certification of appellant’s right

to appeal and an April 1, 2019 certification of appellant’s right to appeal, each of which states

this “is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right to appeal.” It is not clear from the record that the trial court gave appellant

permission to appeal. Because we are faced with a conflicting record concerning our

jurisdiction, we will abate this appeal for the trial court to clarify whether (1) appellant waived

her right to appeal under a plea bargain agreement with the State, or (2) although appellant

waived her right of appeal in a plea bargain agreement with the State, the trial court gave

appellant permission to appeal and appellant has the right of appeal. Cf. Taylor v. State, 247

S.W.3d 223, 224 (Tex Crim. App. 2008) (the appellate court should abate for the trial court to

clarify whether it intended to grant a motion for new trial or an appeal).

We ORDER the Honorable Brandon Birmingham, Presiding Judge, 292nd Judicial

District Court, to issue, on or before AUGUST 16, 2019, either (1) an amended certification of

appellant’s right to appeal that accurately reflects the trial court proceedings, or (2) written

findings explaining why appellant has permission to appeal despite the record showing she does

not. If necessary, the judge may review the reporter’s record or clerk’s record to refresh his

recollection of the proceedings. See Wicker v. State, 740 S.W.2d 779, 784 (Tex. Crim. App.

1987).

We ORDER Dallas County Clerk Felicia Pitre to file a supplemental clerk’s record

containing the trial court’s amended certification of appellant’s right to appeal on or before

AUGUST 23, 2019.

We DIRECT the Clerk of this Court to send a copy of this order to the Honorable

Brandon Birmingham, Presiding Judge, 292nd Judicial District Court; Dallas County Clerk

Felicia Pitre; and counsel for the parties. We ABATE the appeal to allow the trial court an opportunity to comply with this order.

It shall be reinstated when the supplemental clerk’s record is filed or by August 26, 2019,

whichever is earlier.

/s/ ROBERT D. BURNS, III CHIEF JUSTICE