Tyrieck Dontrell Smalls v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00220-CR

Tyrieck Dontrell Smalls, Appellant

v.

The State of Texas, Appellee

FROM THE 426TH DISTRICT COURT OF BELL COUNTY NO. 75790, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Appellant was indicted for the first degree felony offense of aggravated sexual

assault of a child. See Tex. Penal Code § 22.021(a)(1)(B)(ii). Pursuant to a written plea

agreement, appellant pleaded “no contest,” see Tex. Code Crim. Proc. art. 27.02 (providing for

plea of “nolo contendere”), to the lesser-included second degree felony offense of indecency

with a child by contact, see Tex. Penal Code § 21.11(a)(1). Among the waivers in the plea

agreement, appellant waived “any and all rights of appeal in this case.” However, in the

certificate of appellant’s right to appeal, the trial court certified that this case was not a plea

bargain case and appellant has the right to appeal. During the punishment hearing, the trial court

also told appellant that he had the right of appeal in this case. On appeal, appellant and the State agree that the appeal should be abated to

correct the trial court’s certificate of appellant’s right to appeal. Based on the record before this

Court, we agree that the trial court’s certification signed on March 15, 2019, appears to be

incorrect. See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (explaining that

when determining whether appellant has right to appeal, appellate courts examine trial court’s

certification for defectiveness, defined as certification that is “correct in form but which, when

compared to the record before the court, proves to be inaccurate”); see also Shankle v. State,

119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003) (discussing appellant’s right to appeal from

charge-bargains).

Therefore, we abate the appeal and remand the case to the trial court to issue a

new certification and, if necessary, to convene a hearing and to issue findings of facts and

conclusions of law. See Tex. R. App. P. 37.1 (requiring appellate court to notify parties if there

appears to be defect in certification); Dears, 154 S.W.3d at 614 (stating that appellate courts

have authority under Rules of Appellate Procedure “to obtain another certification, whenever

appropriate”); see also Tex. R. App. P. 25.2(a)(2) (addressing when defendant may appeal in

plea bargain case); Tex. Code Crim. Proc. art. 44.02 (addressing defendant’s right to appeal

when defendant has been convicted under plea of guilty or plea of nolo contendere and trial court

assesses punishment that does not exceed that recommended by prosecutor and agreed to by

defendant and when defendant must have permission from trial court to bring appeal).

The district court clerk is instructed to forward to this Court a supplemental

clerk’s record containing the certification and any findings and conclusions no later than

September 16, 2019. See Tex. R. App. P. 34.5(c)(2).

2 Before Justices Goodwin, Baker, and Kelly

Abated and Remanded

Filed: August 13, 2019

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