Opinion
No. 07-20-00135-CR
08-20-2020
ROBERT JAMES BERRY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court Donley County, Texas
Trial Court No. 4072; Honorable Stuart Messer, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
In 2019, Appellant, Robert James Berry, was placed on deferred adjudication community supervision for four years following his plea of guilty to the offense of aggravated assault with a deadly weapon, enhanced to a first degree felony. In 2020, the State moved to adjudicate Appellant's guilt, alleging that he violated the terms and conditions of his community supervision. Appellant pleaded true to the violations alleged in the State's motion. The trial court revoked Appellant's deferred adjudication community supervision, adjudicated him guilty, and sentenced him to twenty-five years confinement in accordance with the punishment recommendation agreed to by Appellant and the State. Appellant has timely filed his notice of appeal.
TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2019).
The trial court's certification of Appellant's right of appeal reflects that Appellant has no right of appeal because he has waived that right. TEX. R. APP. P. 25.2(a)(2), (d). The certification is not supported by the record, however, as the record before the court does not contain a waiver of appeal signed by Appellant. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005) (requiring appellate courts to determine whether a certification comports with the record); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (holding that a voluntary, intelligent, and knowing waiver of appeal prevents a defendant from appealing without the consent of the trial court).
We also note that Appellant's case is not a "plea bargain case." Rule of Appellate Procedure 25.2(a)(2) defines a "plea bargain case" as a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Because this definition does not include pleas of true on revocation motions, an agreement as to punishment on a plea of true does not limit the defendant's right of appeal. Dears, 154 S.W.3d at 613.
Furthermore, Appellant's appellate counsel has indicated that Appellant intends to raise an issue of ineffective assistance of counsel arising out of trial counsel's performance during the punishment phase of the revocation hearing. An appellant is not prohibited from challenging on appeal issues "unrelated to" an adjudication of guilt, Kirby v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001), and ineffective assistance of counsel at the punishment phase after an adjudication of guilt is "unrelated to" a claim regarding the propriety of a conviction. Id. at 51-2.
Because the certification of Appellant's right of appeal appears defective, we abate the appeal and remand the cause to the trial court to prepare an amended certification consistent with the record. TEX. R. APP. P. 25.2(f). The trial court shall utilize reasonable means to secure Appellant's signature on the amended certification. TEX. R. APP. P. 25.2(d). The amended certification shall be included in a supplemental clerk's record filed with this court by September 28, 2020. TEX. R. APP. P. 34.5(c)(2).
It is so ordered.
Per Curiam Do not publish.