**COURT OF APPEALS**

# SECOND DISTRICT OF TEXAS

**FORT WORTH**

**NO. 02-16-00404-CR**

**NO. 02-16-00405-CR**

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FROM THE 415th District Court OF Parker COUNTY

TRIAL COURT NO. CR16-0118, CR16-0108

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## ABATEMENT ORDER

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Our review of the appellate records in these cases indicates that the trial court’s certifications of Appellant Gilbert William Anderson, III’s right to appeal are defective.  The trial court’s nonstandard certification in each case certifies that the case “~~is not a plea-bargain case, and~~ the defendant has the right of appeal **as to punishment only.**”

Appellant states in his brief, however, that “[t]he [S]tate waived other counts [besides deadly conduct and felon in possession of a firearm], including habitual counts, in exchange for Appellant’s pleas of guilty with punishment to be set by a jury, thus capping his maximum punishment exposure to twenty (20) years concurrently.  (RR4:5-11).”  Our review of the reporter’s record confirms that this bargain occurred.  The State waived a third allegation—aggravated assault with a deadly weapon—as well as one of two enhancement paragraphs in exchange for Appellant’s guilty pleas.  The Texas Court of Criminal Appeals has held that a guilty plea made in exchange for a sentencing cap is a plea bargain for purposes of rule 25.2(a)(2).  *Shankle v. State*, 119 S.W.3d 808, 812–14 (Tex. Crim. App. 2003).

Appellant also signed a document waiving all pretrial motions and his rights of appeal in each case; these waivers were not specified when the parties placed the terms of the bargain on the record in open court.  *Compare Jones v. State*, 488 S.W.3d 801, 805, 807 (Tex. Crim. App. 2016) (upholding presentence boilerplate waiver when the State abandoned an enhancement paragraph that lowered the minimum statutory term of confinement), *with**Ex parte De Leon*, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013) (holding that waiver was not a binding term of the bargain and that it did not override the trial court’s permission to appeal).  It is unclear from the records whether the trial court has given Appellant permission to pursue these appeals despite the waivers and bargain.

Accordingly, we **ABATE** these causes and **REMAND** them to the trial court.  For each case, we direct the trial court to file in this court a supplemental clerk’s record containing an amended certification of appellant’s right to appeal that comports with the record on or before **Tuesday, January 2, 2018.***See*Tex. R. App. P. 25.2(a)(2), (d), (f), 37.1; *Marsh v. State*, 444 S.W.3d 654, 659–60 (Tex. Crim. App. 2014).  Should any proceedings related to amending the certifications occur in open court, the trial court shall also ensure that a supplemental reporter’s record of those proceedings is filed in this court on or before **Tuesday, January 2, 2018.**  The trial court shall use whatever means necessary to secure a complete, proper amended certification in each case and shall inform this court as soon as practicable if it is unable to execute the certifications in accordance with the requirements of rule 25.2(d).  *See*Tex. R. App. P. 25.2(d), Apx D. 

The appeal of these causes shall be automatically reinstated without further order upon our receipt of the complete supplemental record.  

The clerk of this court is directed to transmit a copy of this order to the attorneys of record, Appellant, the trial court judge, the court reporter, and the trial court clerk.

DATED November 3, 2017.

PER CURIAM

PANEL:  SUDDERTH, C.J.; PITTMAN and KERR, JJ.

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