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: Lloyd Gipson Carter v. The State of Texas

Appellate case number: 01

- 18

- 00116

- CR

Trial court case number: 1488008

Trial court: 176th District Court of Harris County

Appellant , Lloyd Gipson Carter, pleaded guilty to the first

- degree felony offense

of murder on July 7, 2017 , and his trial counsel filed a motion for community supervision . Appellant’s plea was made without an agreed punishment rec ommendation

from the State pending a pre

- sentence investigation (“PSI”) report and hearing, but his plea waiver stated that appellant agreed to waive his right to appeal in exchange for the State’s agreement to waive its right to a jury trial. At the Nove mber 8, 2017 PSI hearing

, the trial court adjudicated appellant guilty and assessed his punishment at 60 years’

confinement . The trial court’s certification of appellant’s right to appeal indicates that he waived the right to appeal. See T EX

. R. A PP

. P. 25.2(a)(2). Through new counsel, Appellant filed a motion for a new trial, which the trial court denied without a hearing

. Appellant timely filed a notice of appeal on February 5, 2018, to challenge this denial

.

The Rules of Appellate Procedure require this Court to dismiss an appeal unless a certification showing that the appellant has the right to appeal has been made part of the

record. See T EX

. R. A PP

. P. 25.2(a)(2). The rules also provide that an amended trial
court’s certification of the defenda nt’s right to appeal correcting a defect or omission may be filed in the appellate court. See T EX

. R. A PP

. P. 25.2(f), 34.5(c), 37.1. Further, when

the Clerk of this Court receives the record, it is obligated to review the record to ascertain

whether the certification is defective and, if it is defective, it must use Rules 37.1 and 34.5(c) to obtain a correct certification. Dears v. State , 154 S.W.3d 610, 614

– 15 (Tex. Crim. App. 2005); see T EX

. R. A PP

. P . 34.5(c), 37.1.

Because the certification appeared defective, the Clerk of this Court’s March 13, 2018 notice requested a supplemental clerk’s record containing an amended certification,

if n ecessar y. On May 15, 2018, a supplemental clerk’s record was filed containing the trial court’s findings o f fact and conclusions of law, signed on April 13, 2018. The trialcourt found that appellant’s waiver of his right of appeal was bargained for in exchange

for the State’s waiver of its right to a jury trial and concluded that appellant had knowingly and intelligently waived his right of appeal as part of this plea bargain. See Ex parte Broadway , 301 S.W.3d 694, 697

- 99 (Tex. Crim. App. 2009).

Appellant filed a motion to abate this appeal for the trial court to hold an evidentiary hearing on his motion fo r new trial. The State filed a response in opposition

to the motion to abate with a motion to dismiss this appeal for want o f jurisdiction. T he

State argued that, as in Broadway , under Article 1.13 of the Texas Code of Criminal Procedure, “a defendant ma y not unilaterally waive the right to a jury trial” because the court and State must consent, and the State’s consent was consideration for the appellant’s waiver of his right of appeal. See Ex parte Broadway , 301 S.W.3d at 698

– 99. Appellant filed a resp onse contending that the State’s motion should be denied because his waiver of his right of appeal was not made knowingly and intelligently and he did not receive consideration for his waiver because the trial court was not permitted to consider community supervision for a murder charge.

The Court of Criminal Appeals has held that when a defendant waives his right of appeal before sentencing and without a punishment agreement, the waiver is not valid. See Ex parte Delaney , 207 S.W.3d 794, 798 (Tex. Crim. App. 2006). The Court held that, “ in order for a pretrial or presentencing waiver of the right to appeal to be binding at the punishment phase of trial, the waiver must be voluntary, knowing, and intelligent ,” and “[o] ne way to indicate that the waiver was knowing and intelligent is for the actual punishment or maximum punishment to have been determined by a plea agreement when

the waiver was made. ” Id. at 799. T he C ourt of Criminal Appeals in Broadway

r eiterat ed the Delaney rule, but distinguish ed it because the State there gave consideration

for the waiver

. See Ex parte Broadway , 301 S.W.3d at 697

- 98 . The Broadway Court upheld the appellant’s presentencing waiver because the State had consented to appellant’s waive r of h is right to a jury trial, which he did to allow the trial court to

consider alternative placement on community supervision with drug treatment as opposed

to the minimum 25

- year prison sentence with a plea bargain

. See id. at 69 6

- 98 ; s ee also

Jones v. State , 488 S.W.3d 801, 807 (Tex. Crim. App. 2016) (upholding waiver of right to appeal because defendant received consideration for waiver by State ’s agree ment to abandon enhancement paragraph which reduc ed minimum sentence from 25 to 5 years).

Here, t here is no indication in the record that the appellant’s presentencing waiver was voluntary, knowing, and intelligent because it was without an agreed punishment

recommendation and , thus, was not part of a plea bargain

. See Ex parte Delaney , 207

S.W.3d at 799 (stating that “[o] ne way to indicate that the waiver was knowing and intelligent is for the actual punishment or maximum punishment to have been determined by a plea agreement when the waiver was made .”). I n Broadway , the trial court had

admonished the appellant , who was charged with two crimes, including one drug

- related felony, that if he did an open plea and waived his right to a jury trial , that would allow the court “to consider giving [him] some kind of drug treatment on probation.” Ex parteB roadway , 301 S.W.3d at 696 (“In order to secure the judge’s ability to consider

deferred

- adjudication community supervision with drug treatment,” appellant “waived his right to a jury trial” and pleaded guilty to both charges, but court still assessed puni shment at minimum 25 years’ confinement). However, unlike Broadway and Jones

, there was n o sentencing consideration given to A ppellant for his presentencing waiver of his right of appeal because th e trial court was not permitted to consider c ommunity

supe rvision for a murder charge and his maximum punishm ent range did not change. See

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12, § § 3g(a)(1)(A) , 5(d)(4) (West 20 06 ) (limitation on judge

- ordered community supervision does not apply to murder charge s ).

Accordingly, the Court DENIES the State’s motion to dismiss and GRANTS Appellant’s motion to abate , in part . The Court abates this appeal and remand s the

cause to the trial court to conduct a hearing at which a representative of the Harris County

District Attorney’s Office and appellant’s counsel

, Jimmy D. Ashley

, shall be present. *

We direct the trial court to: 1) M ake a finding regarding whether or not appellant has the right to appeal; 2) If necessary, execute an amended certification of appellant’s right to appeal; 3) Make any other findings and recommendations the trial court deems appropriate; and 4) Enter written findings of fact, conclusions of law, and recommendations as appropriate, separate and apart fr om any docket sheet notations.

The court coordinator of the trial court shall set a hearing date within 30 days of

the date of this order and notify the parties. The trial court shall have a court reporter record the hearing. The trial court clerk is directed to file a supplemental clerk’s record

containin g the trial court’s amended certification, findings, and order s with this Court

within 1 0 days of the date of th e hearing . The court reporter is directed to file the supplemental reporter’s record of the hearing within 1 0 days of the date of th e hearing

.

Th is 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 supplemental records that comply with this O rder are filed with the Clerk of this Court.

It is so ORDERED. Judge’s signature: / s/ Evelyn V. K e yes



Date: July 2 4 , 2018

* 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 use of a closed

circuit video teleconferencing system that provides for a simultaneou s compressed full motion video and interactive communication of image and sound. On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State.