Opinion issued July 12 , 2012.

In The 

## Court of Appeals For The 

## First District of Texas

____________ NO. 01
- 11
- 0 0211
- CR

____________ STACEY VERNELL GRAY , Appellant

v . THE STATE OF TEXAS, Appellee

On Appeal from the 240 th District Court Fort Bend County, Texas Trial Court Cause No. 09
- DCR
- 053036

MEMORANDUM OPINION On July 15, 201 0 , a

ppellant, Stac e y Vernell Gray, pleaded guilty to the offense of possession of a controlled substance , 1 w ithout recommendation from the
S tate but pursuant to appellant entering into a drug court program . T he trial court accepted appellant ’s plea, but postponed sentencing and recessed the hearing
pen ding appellant’s completion of the drug court program .

1 See T EX
. H EALTH & S AFETY C ODE A NN
. §481.115( b) (West 2010).2

In conjunction with his plea, a p pellant signed written admonishments , which stated t hat there was no plea bargain before the court , but rather an open plea bargain, the outcome of which depended on appellant’s successful completion of, or alternatively removal from, the drug court progra m . Appellant signed a waiver of statutory and constitutional rights , inc luding a waiver of the right to have a court reporter record appellant’s plea and all other proceedings in the cause. Appellant also signed a separate waiver of the right to appeal. Appellant was subsequently terminated from the drug court program , and on February 24, 2011, the trial court sentenced appellant to 18 months confinement in state jail. On that date, A ppellant signed a second waiver of the right to appeal and
t he trial cou rt certified that appellant had waived his right of appeal. Nonetheless,

a ppellant timely filed a notice of appeal. Upon further review, it was discovered that t he certification from the February 2011 sentencing was not signed by appellant, although it wa s signed by the trial judge and appellant’s counsel. Upon the request of this Court, a new certification, signed by appellant, the trial judge, and appellant’s counsel, was submitted to this Court, aga in certifying that appellant had waived his right of
ap peal. In reviewing appellant’s right to appeal, this Court first looks to the waiver signed in July 2010. When appellant pleaded guilty in July 201 0 , the plea was3

accepted , but sentencing was postponed pursuant to a pre

- trial diversion agreement which required appellant to enter a drug court program. Appellant was made aware that if he successfully completed the drug court program, he could elect to have his case dismissed o r pursue an expunction. Appellant was also made aware that if he did not successfully complete the drug court program the trial court could assess punishment anywhere within the applicable range provided by statute for the degree of the offense committed. While pre

- trial diversion agreements are akin to negotiated plea agreements, In re D.R.R. , 322 S.W.3d 771, 773 (Tex. App.

— El Paso 2010, no pet.) (citing Ex parte Williams , 637 S.W.2d 943, 948 (Tex. Crim. App. 1982)), the waiver executed with respect to the se agreements should clearly reflect appellant’s intent to forgo h is rights in exchange for permission to participate in the
pre - trial diversion agreement , Arnold, Expunction of , 34 S.W.3d 583, 586 (Tex. App.

— El Paso 2000, no pet.). This C ourt will not re ach the issue of whether the July
2010 waiver was valid as it is not dispositive of the result in the appeal before us

. Turning to the second waiver signed by appellant , this Court finds that waiver to be invalid. The waiver used plea

- bargain language, but the record does not reflect that appellant’s 18 month sentence was the subject of a plea

- bargain. Therefore, this second waiver was not a valid waiver of the right to appeal. See Ex parte Delaney , 207 S.W.3d 794, 798 (Tex. Crim. App. 2006) (waiver of appe al was not made knowingly and intelligently regarding the sentencing phase of trial when executed4

before trial court decided to proceed to adjudication of guilt, without any bargain and without a recommended sentence). Regardless of the validity of the written waivers of appeal signed by appellant, the certification could still be accurate if appellant orally waived his right to appeal in open court after sentencing. However, there is no reporter’s record of the sentencing proceedings because appellant w aived the taking of a reporter’s record.
T he proceedings and documents from the trial court are entitled to a “presumption of regularity.” The presumption of regularity is a judicial construct that requires the reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of the proceedings and documents in the lower
court. McCloud v. State , 527 S.W.2d 885, 887 (Tex. Crim. App. 1975). This means that the recitation in the records of the trial court are binding in the absence of direct proof of their falsit y. Breazeale v. State , 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). The certification of defendant’s right to appeal is a document from the trial court, and therefore is one of the documents entitled to a “presumption of regularity.”
The burden is on the d efendant to overcome this presumption. Dusenberry v.
State , 9 15 S.W.2d 947, 949 (Tex. App.

— Houston [1 st Dist.] 1996, pet. ref’d

. ).
W hen the defendant waives the right to have a court reporter record the plea hearing and other proceedings in the cause , the burden is nonetheless on the defendant to see5

that a sufficient record is presented on appeal to show error. See Montoya v. State , 872 S.W.2d 24, 25 (Tex. App.

— Houston [1 st Dist.] 1994, pet. ref’d.). In his notice of appeal, appellant contends that he did not want to sign the certification or signed it under false pretenses. However, w ithout a record, appellant cannot demonstrate that he did not waive his right of appeal in open court after sentencing. Because this Court must presume that the records of the trial court are binding without direct proof of their falsity, this Court must presume that appellant waived his right of appeal in open court after sentencing and that the trial court’s certification is valid. This appeal is currently abated. A supp lemental clerk’s record complying with our Order of Abatement has been filed with the Clerk of this Court. Therefore, we order the appeal reinstated. For the reasons above , we dismiss the appeal for want of jurisdiction. All pending motions are dismissed a s moot. PER CURIAM Panel consists of Chief Justice Radack and Justices Jennings and Keyes

. Do not publish. T EX
. R. A PP
. P. 47.2( b).