C OURT OF A PPEALS FOR THE
F IRST D ISTRICT OF T EXAS AT H OUSTON

O RDER OF A BATEMENT

Appellate case name: Clint Constance Valdez v. The State of Texas

Appellate case number: 01

- 18

- 00322

- CR

Trial court case number: 15CR2815

Trial court: 10th District Court of Galveston County

Appellant was charged with t he second

- degree felony offense of Engaging in Prohibited

Sexual Conduct with Ancestor/Descendant . Appellant filed a pre

- trial motion to quash the indictment, challenging Section 25.02 of the Texas Pen al Code as unconstitutional. After the trial court denied the motion to quash, appellant pleaded guilty to the offense without an agreed recommendation from the State regarding punishment. The trial court found appellant guilty and assessed punishment at e ight years’ imprisonment. The trial court’s certification of appellant’s right to appeal states that “the defendant has waived the right to appeal as to guilt/innocence only.” Appellant timely filed a notice of appeal. Appellant’s appointed counsel has mov ed to withdraw from this appeal and filed a brief concluding that the appeal is frivolous. See Anders v. California

, 386 U.S. 738, 744 (1967)

As provided below, w e abate the appeal and remand to the trial court to (1) appoint new appellate counsel to represent appellant and (2) hold a subsequent hearing to determine whether an amended certification of appellant’s right to appeal should be issued.

I. Appoint ment of New Counsel on Appeal

Under Anders , if appointed counsel concludes after reviewin g the record and applicable law that the appeal is without merit, counsel must advise the court, file a motion to withdraw, and file a brief discussing any issue that might arguably support the appeal. See id. at 744; Kelly v.

State , 436 S.W.3d 313, 318 (T ex. Crim. App. 2014). The appellate court must then perform an independent examination of the record and the law to determine whether the appeal is frivolous.

See Anders , 386 U.S. at 744. The question before us is not who will ultimately prevail but inste ad whether any non

- frivolous issue exists. If the court determines that there are arguable issues, it must abate the appeal and remand with orders for the trial court to appoint new counsel. See Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)

. Based on our independent review of the record and applicable law , we conclude that a nonfrivolous issue may exist regarding appellant’s pre

- trial motion challenging the constitutionality of Penal Code Section 25.02

. Accordingly, we strike counsel’s Anders brief andgrant counsel’s motion to withdraw. We abate this appeal and remand the cause for the trial court

to appoint new appellate counsel. The trial court is ordered to inform this Court in writing of the identity of new counsel and the date of a ppointment within 20 days of the date of this order

.
II. Certification of Appellant’s Right to Appeal

A defendant may waive his right to appeal as a part of a plea even when sentencing is not agreed upon, where consideration is given by the State for that waiver. Ex parte Broadway , 301 S.W.3d 694, 699 (Tex. Crim. App. 2009). In this case, however, the reco rd is insufficient to support

the trial court’s certification that appellant waived his right to appeal as to guilt/innocence because

the record does not indicate a bargained

- for waiver of appellant’s right to appeal. See id . at 697

– 99; Washington v. State , 363 S.W.3d 589, 589 (Tex. Crim. App. 2012). The Texas Rules of Appellate Procedure permit amendment of a defective certification. See T EX

. R. A PP

. P. 25.2(f), 34.5(c)(2), 37.1, 44.4; see also Dears v. State , 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

A ccordingly, t he trial court shall conduct a hearing within 30 days after the trial court appoints new counsel at which a representative of the Galveston County District Attorney’s Office and appellant’s new counsel shall be present. Appellant shall also be present for the hearing in person or, if appellant is incarcerated, at the trial court’s discretion, appellant may participate in the hearing by closed

- circuit video teleconferencing.

We direct the trial court to:

1) Make findings regarding whether appellant waived his right to appeal as to guilt/innocence and whether consideration was given by the State for appellant’s waiving his right to appeal guilt/innocence;

2) If no consideration was given by the State for appellant’s waiving his right to appeal as to gui lt/innocence, e xecute an amended certification of appellant’s right to appeal indicating that this is not a plea

- bargain case and appellant has the right to appeal; and

3) Make any other findings and recommendations the trial court deems appropriate.

See T EX

. R. A PP

. P. 25.2(a)(2), (d), (f), 34.5(a)(12), (c)(2), 37.1.

The trial court shall have a court reporter, or court recorder, record the hearing. The trial court clerk is directed to file a supplemental clerk’s record containing the trial court’s certificat ion of appellant’s right to appeal and any other findings, recommendations, and orders of the trial court

with this Court within 20 days of the date of the hearing. See T EX

. R. A PP

. P . 34.5(c)(2)

. The court reporter is directed to file the reporter’s recor d of the hearing within 2 0 days of the date of the hearing.

The appeal is abated, treated as a closed case, and removed from this Court’s active docket. The appeal will be reinstated on this Court’s active docket when the supplemental clerk’s record

and the reporter’s record of the hearing are fi led with the Clerk of this Court.

It is so ORDERED.

Judge’s signature:

____

/s/ Sarah Beth Landau

____ Acting individually

Date: ___ May 16, 2019

_____