Second Order on Continuing Abatement filed October 2, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00685-CR

MIRNA SALAS ABBOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 207th District Court

Comal County, Texas

Trial Court Cause No. CR2017-585(1)

SECOND ORDER ON CONTINUING ABATEMENT

Appellant Mirna Salas Abbott was convicted of the felony offense of 

possession of a controlled substance (more than four grams but less than 200 grams).

In challenging the trial court’s judgment as to her guilt, appellant raises due-processof-law and ineffective-assistance-of-counsel issues related to events that took place 

before she entered a plea of guilty to the charged offense. The State has argued on 

appeal that appellant has waived her right to appeal as to these issues. 
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In its certification under Texas Rule of Appellate Procedure 25.2(a)(2), the 

trial court certified that this case “is not a plea-bargain case, and the defendant has 

the right to appeal except as to guilt/innocence.” Thus, the trial court certified that 

appellant has no right to appeal as to guilt/innocence. If this certification is accurate, 

then appellant would have no right to appeal as to all the complaints she has raised 

in this court. As long as this certification stands as the current Rule 25.2(a)(2) 

certification in our appellate record, we cannot proceed to address appellant’s 

appellate complaints. See Tex. R. App. P. 25.2(d) (stating that “[t]he appeal must 

be dismissed if a certification that shows the defendant has the right of appeal has 

not been made part of the record under these rules”); Jones v. State, 488 S.W.3d 801, 

804 (Tex. Crim. App. 2016). This court has an obligation to review the record and 

determine whether the trial court’s Rule 25.2(a)(2) certification is defective. See 

Jones, 488 S.W.3d at 805. Even though a certification may be correct in form, if the 

certification is contrary to the appellate record, the certification is defective. See 

Jones, 488 S.W.3d at 804; Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 

2005). Thus, in our July 30, 2020, order in this appeal (“July Order”), we reviewed

the appellate record to determine whether the trial court’s Rule 25.2(a)(2) 

certification is contrary to the record and thus defective. See Jones, 488 S.W.3d at 

805. 

The record reflects that appellant signed a document entitled 

“Admonishments, Voluntary Statements, Waivers, Stipulations, Judicial Confession 

& Plea Bargain Agreement” (the “Plea Papers”). Though the title of the Plea Papers 

includes the term “Plea Bargain Agreement,” and though this term is used several 

times in the document, the text makes clear that the document is based on a form 

that may be used for a plea bargain agreement and also may be used for “guilty”

pleas without any plea bargain agreement. The Plea Papers provide that “[i]f a plea 
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bargain does exist, the court will inform you in open court before making a finding 

on your plea whether it will follow the plea bargain.” In the part of the Plea Papers 

in which appellant states she waived her right to appeal as to guilt or innocence (the 

“Waiver of Appeal”), appellant does not mention any consideration given by the 

State:

I understand my right to appeal but, having entered into a plea 

agreement with the State and as part of that agreement before 

sentencing, I waive my right to appeal from the judgment and sentence 

as to guilt or innocence.

Appellant agreed to plead “guilty” to the charged offense and to plead “true” to the 

enhancement paragraph. In the part of the Plea Papers in which the State could have 

given consideration by recommending a sentence or agreeing to prosecute appellant 

only on a lesser-included offense, the State did not check any of the first eleven items 

available in the form; instead, the State checked “Other” and inserted the following 

text in the blank lines:

This is an open plea of guilty and true to the enhancement paragraph. 

[Appellant] shall not ask for and shall not receive a deferred 

adjudication. Therefore, [appellant] shall be sentenced to a term not less 

than 15 years and not more than 99 years or life and a fine not to exceed 

$10,000. 

The inserted language contains no reference to any consideration given by the State. 

Below this language, the Plea Papers state that “[t]he above terms constitute our 

agreement, and there are no agreements not set forth above.” (the “End-ofAgreement Sentence”). Significantly, the wording on which the State relies as 

consideration for the Waiver of Appeal falls below the End-of-Agreement Sentence 

and above the signature line for the assistant district attorney:

I hereby join, consent to and approve of: (1) the stipulations of evidence 

pursuant to Art. 1.15, C.C.P.; and (2) the waiver of jury trial pursuant to Art. 

1.13, C.C.P., conditioned on the Court accepting this Plea Agreement and 
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sentencing [appellant] in accordance with this Plea Agreement.

In the July Order, we concluded that under the unambiguous language of the Plea 

Papers, the words on which the State relies as the bargained-for consideration were

not part of the agreement between appellant and the State because these words fell 

below the End-of-Agreement Sentence. We also noted that the language on which 

the State relies does not say that the State agrees that it will join, give consent to, or 

approve of the waiver of jury trial or that the State is doing so in exchange for 

appellant’s Waiver of Appeal. Instead, by this language the State consented to and 

approved the waiver of jury trial in the manner required by article 1.13 of the Texas 

Code of Criminal Procedure. See Tex. Crim. App. Pro. Ann. art. 1.13 (stating that 

the attorney representing the state must consent to and approve of a defendant’s 

waiver of the right to a jury trial and that this consent and approval must be “in 

writing, signed by [the attorney for the State], and filed in the papers of the cause 

before the defendant enters the defendant’s plea”). Though the State conditioned its 

consent to the jury-trial waiver on the trial court’s acceptance of “this Plea 

Agreement and sentencing the Defendant in accordance with this Plea Agreement,” 

this conditional consent, which is not part of the agreement, does not show that 

appellant received any bargained-for consideration in exchange for her Waiver of 

Appeal.

At the hearing in which appellant pleaded “guilty,” no person mentioned any 

consideration given by the State in exchange for appellant’s Waiver of Appeal. 

Instead, after reciting that the case involved an open plea, the trial court confirmed 

that no one had promised appellant anything:

[trial court]: Ms. Abbott, in your case — okay. It’s an open — in 

exchange for your willingness to plead guilty — I take it we’ll reset this 

for a punishment hearing at a later date. This would basically be an open 

plea to that range of punishment, 15 years in the penitentiary up to 99 
5

years or life, again, understanding that no probation of any kind is an 

option for the Court. Do you understand that?

[appellant]: Yes.

[trial court]: Let’s see here. Anybody promise you anything other than 

that?

[appellant]: No.

After appellant had pleaded “guilty,” and at the beginning of the punishment 

hearing the trial court described the case as follows:

[trial court]: Okay. We’re here on an open plea; correct?

[appellant’s attorney]: Yes, sir.

[trial court]: Technically, it was a negotiated plea just 

removing deferred adjudication from the 

table with the effective punishment range 

being 15 years to 99 years to life and a fine 

not to exceed $10,000. Correct?

[appellant’s attorney]: Correct.

Though the trial court first stated that the case involved an open plea and then 

stated that it involved a negotiated plea, the trial court did not mention any 

consideration given by the State. At no time during the punishment hearing did any 

person mention any consideration given by the State in exchange for appellant’s 

Waiver of Appeal.

In the July Order, we concluded the record in this case does not show that the 

State provided appellant with a benefit as part of a bargained-for exchange that 

would supply the requisite consideration for appellant’s Waiver of Appeal. See

Simon v. State, 554 S.W.3d 257, 262–63 (Tex. App.—Houston [14th Dist.] 2018, no 

pet.); Jenkins v. State, 495 S.W.3d 347, 352 (Tex. App.—Houston [14th Dist.] 2016, 

no pet.). The State did not agree to or recommend any punishment in the Plea Papers 

or by any other means before appellant pleaded “guilty” and made the Waiver of

Appeal. Thus, appellant’s punishment remained uncertain when appellant made the 
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Waiver of Appeal. The State did not agree to waive the enhancement paragraph or 

allow appellant to plead “guilty” to a lesser-included offense. Appellant could not 

receive the benefit of community supervision because she was not eligible based on 

her “guilty” plea and plea of “true” to the enhancement paragraph. See Tex. Crim. 

App. Pro. Ann. art. 42A.053. Nor could appellant obtain the benefit of deferred 

adjudication because appellant agreed that she would not request or receive deferred 

adjudication. Nothing in the record reflects that the State did not want to consent to 

a jury-trial waiver but appellant induced the State to do so by waiving her right to 

appeal. Though the State signed the Plea Papers, the State did so for the stated 

purpose of joining, consenting to, and approving of the stipulations of evidence and 

the waiver of jury trial. The State did not say that it agreed to be bound by the Plea 

Papers, and even if the State had done so, the document does not contain any 

provision in which the State gives appellant a benefit or agrees to give her a benefit. 

The record does not show that the parties bargained for the State’s consent to 

appellant’s waiver of a jury trial or that the State otherwise attributed negotiating 

value to this purported consideration. See Simon, 554 S.W.3d at 262–63; Jenkins, 

495 S.W.3d at 352. The record shows that the State did not bargain for appellant’s 

Waiver of Appeal and that appellant did not know with certainty the punishment that 

the trial court would assess when appellant entered her plea. In the July Order, we 

concluded that the record shows appellant’s Waiver of Appeal is invalid and does 

not prevent appellant from appealing as to guilt/innocence or as to punishment. See 

Simon, 554 S.W.3d at 262–63; Jenkins, 495 S.W.3d at 352. 

In the July Order, we noted that the cases on which the State relies differ in 

key respects. First, our recent decision in Lopez v. State involved materially different 

facts that prompted a different outcome. See Lopez v. State, 595 S.W.3d 897, 899–

901 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). In Lopez, the plea papers 
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contained the following language in which the defendant explicitly acknowledged 

the exchange: 

I understand that I have not reached an agreement with the prosecutor as to 

punishment. However, in exchange for the State waiving their [sic] right to a 

jury trial, I intend to enter a plea of guilty without an agreed recommendation 

of punishment from the prosecutor and request that my punishment should be 

set by the Judge after a pre-sentence investigation report and hearing. I 

understand the state reserves the right to argue for full punishment at my 

sentencing hearing. I waive any further time to prepare for trial to which I or 

my attorney may be entitled. Further, in exchange for the state giving up 

their [sic] right to a jury trial, I agree to waive any right of appeal which 

I may have.

Id. at 900 (emphasis added by the Lopez court). Contrary to the State’s argument, 

Lopez is not on point because the record in today’s case does not contain similar

evidence of a bargained-for exchange of consideration. 

The facts of today’s case do not fall within the line of cases in which the 

appellant negotiated an agreement with the State to obtain a benefit through the 

State’s consent to the appellant’s jury-trial waiver in exchange for the appellant’s

waiver of the right to appeal. See Jenkins v. State, 495 S.W.3d 347, 352 (Tex. 

App.—Houston [14th Dist.] 2016, no pet.) (“Although appellant certainly benefited 

from the State’s decision to consent to the jury trial waiver, which (as in Delaney) 

allowed him to seek deferred-adjudication community supervision, there is no 

indication in the record that appellant negotiated an agreement with the State to 

obtain this benefit in exchange for waiving his right to appeal.”). 

In Jones v. State, the Court of Criminal Appeals found that the documents in 

the record demonstrated sufficient bargained-for consideration where the State 

agreed to abandon an enhancement paragraph, which had the effect of reducing the 

defendant’s minimum punishment from twenty-five years’ confinement to five 

years’ confinement. 488 S.W.3d 801, 807 (Tex. Crim. App. 2016). In today’s case 
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the State did not agree to eliminate an enhancement paragraph, so the Jones case is 

not on point. See id.

Finally, the State’s reliance on the Third Court of Appeals’s recent 

unpublished opinion in Sabins v. State, is unwarranted, as that opinion has no 

precedential value. See Tex. R. App. P. 47.7(a) (stating that “[o]pinions and 

memorandum opinions not designated for publication by the court of appeals under 

these or prior rules have no precedential value”); Sabins v. State, No. 03-18-00732-

CR, 2020 WL 3495859, at *3–6 (Tex. App.—Austin June 25, 2020, no pet. h.) (not 

designated for publication) (mem. op.). Even if Sabins had precedential value, the 

case would not be on point because the facts and circumstances of today’s case, 

discussed above, differ substantially from the facts and circumstances on which the 

Sabins court decided that the waiver of appeal in that case was valid. 

The trial court’s certification, under Texas Rule of Appellate Procedure

25.2(d), of appellant’s right to appeal provides that this “is not a plea-bargain case, 

and the defendant has the right to appeal except as to guilt/innocence.” The record 

shows appellant’s Waiver of Appeal is invalid; therefore, appellant has the right to 

appeal as to both guilt/innocence and as to punishment. See Simon, 554 S.W.3d at 

262–63; Jenkins, 495 S.W.3d at 352. Because the certification contradicts the 

appellate record, the law deems it defective. See Jones, 488 S.W.3d at 804; Dears, 

154 S.W.3d at 614. 

On June 12, 2020, this court issued an order abating this appeal and directing

the trial court to file an amended Rule 25.2(a)(2) certification of the defendant’s right 

of appeal. Instead of filing an amended certification, the trial court ordered the clerk 

of the trial court to submit a supplemental clerk’s record containing another copy of 

the original certification already contained in our appellate record. Though we 

understand that the trial court may disagree with our conclusion as to whether the 
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Waiver of Appeal is valid, any such disagreement does not provide a valid basis for 

the trial court to disregard this court’s determination that appellant’s Waiver of 

Appeal is invalid or for the trial court to disregard an order from this court that the 

trial court file an amended Rule 25.2(a)(2) certification of the defendant’s right of 

appeal. 

In the July Order, this court determined that (1) the record shows appellant’s 

Waiver of Appeal is invalid; (2) appellant has the right to appeal as to both 

guilt/innocence and as to punishment; and (3) the trial court’s certification that 

appellant has no right to appeal as to guilt/innocence contradicts the appellate record. 

This court ordered the trial court to file an amended Rule 25.2(a)(2) certification of 

the defendant’s right of appeal to correct the trial court’s original, defective 

certification. In today’s case, appellant filed her appellate brief before any of this 

court’s orders as to the Rule 25.2(a)(2) certification. Therefore, the trial court may 

amend the Rule 25.2(a)(2) certification only with this court’s leave and on the terms 

prescribed by this court. See Tex. R. App. P. 25.2(f) (stating that “[a]fter the 

appealing party’s brief is filed, the notice or certification may be amended only on 

leave of the appellate court and on such terms as the court may prescribe”); Terrell 

v. State, 264 S.W.3d 110, 113 (Tex. App.—Houston [1st Dist.] 2007, published 

order). 

Instead of complying this court’s July Order and amending the Rule 25.2(a)(2) 

certification on the terms prescribed by this court, the Honorable Dib Waldrip, 

presiding judge of the trial court signed a single-spaced, four-page amended 

certification, in which Judge Waldrip explained his interpretation of the Plea Papers

and provided legal analysis in support of his conclusion that the Waiver of Appeal 

is valid. Contrary to this court’s analysis in the July Order, Judge Waldrip again 

certified that appellant does not have the right to appeal as to guilt/innocence. 
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In Hargesheimer v. State, the trial court certified that the appellant in that case 

had no right to appeal, and the intermediate court of appeals eventually agreed with 

the trial court. See 182 S.W.3d 906, 907–08 (Tex. Crim. App. 2006). The Court of 

Criminal Appeals disagreed with the lower courts’ analysis and concluded that 

appellant had the right to appeal. See id. at 911–13. The State asserted that the Court 

of Criminal Appeals had to affirm the lower court judgment because the trial court’s 

Rule 25.2(a)(2) certification was supported by the record and not defective. See id. 

at 912–13. The Hargesheimer court disagreed and concluded that the certification 

was not supported by the record. See id. at 913. The high court concluded that under 

the circumstances presented in that case, “the trial judge must check the box on the 

certification form indicating that the case ‘is not a plea-bargain case, and the 

defendant has the right of appeal.’” Id. at 913. The Hargesheimer court reversed the 

court of appeals’s judgment and instructed the trial judge to issue a new Rule 

25.2(a)(2) certification designating the case as not a plea-bargain case and one in 

which the defendant has the right of appeal. See id.

In Terrell v. State, in the Rule 25.2(a)(2) certification, the trial court certified 

that the cases were plea-bargain cases and that appellant had no right of appeal. See 

Terrell, 264 S.W.3d at 112. The First Court of Appeals concluded that the cases 

were not plea-bargain cases and that appellant had the right to appeal. See id. at 113. 

Thus, the appellate court concluded that the trial court’s certification was defective.

See id. at 113. Relying upon the court’s authority under Rule 25.2(f) and the high 

court’s opinion in Hargesheimer, the First Court ordered the trial court to amend the 

Rule 25.2(a)(2) certifications to show that appellant had the right of appeal in each 

case. Id. at 114; see Tex. R. App. P. 25.2(f); Hargesheimer, 182 S.W.3d at 911–13.
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We have determined that the record shows appellant’s Waiver of Appeal is 

invalid and that appellant has the right to appeal as to both guilt/innocence and as to 

punishment. The case is still ABATED, and we ORDER and DIRECT the 

Honorable Dib Waldrip to file an amended Rule 25.2(a)(2) certification stating that 

this criminal case is not a plea-bargain case, and the defendant has the right of appeal 

as to both guilt/innocence and as to punishment. See Tex. R. App. P. 25.2(f); 

Hargesheimer, 182 S.W.3d at 911–13; Terrell, 264 S.W.3d at 112–14. Under 

fundamental principles of stare decisis, a district court judge is bound by and must 

follow the order of a court of appeals in an appeal from a case in the judge’s court, 

even if the judge disagrees with the court of appeals’s ruling and even if the Court 

of Criminal Appeals, in the future, may review the court of appeals’s ruling. See 

State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994);

Perez v. State, 495 S.W.3d 374, 392 (Tex. App.—Houston [14th Dist.] 2016, no 

pet.). 

The trial court’s amended certification shall be included in a supplemental 

clerk’s record and transmitted to this court no later than October 9, 2020. The appeal 

will be reinstated when the supplemental clerk’s record has been filed. This court 

may reinstate the appeal on the motion of any party or on its own motion. 

PER CURIAM

Panel consists of Chief Justice Frost and Justices Wise and Hassan.