Rackleyv.State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTINJan 12, 2018
NO. 03-17-00653-CR (Tex. App. Jan. 12, 2018)

NO. 03-17-00653-CR

01-12-2018

Andrew James Rackley , Appellant v. The State of Texas, Appellee


FROM THE 426TH JUDICIAL DISTRICT COURT OF BELL COUNTY
NO. 77278, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION PER CURIAM

Andrew James Rackley was charged with the offense of possession of more than one gram but less than four grams of methamphetamine. See Tex. Health and Safety Code §§ 481.102(6) (listing methamphetamine as substance included in "Penalty Group 1"), .115(a), (c) (providing that person commits offense if he "knowingly or intentionally possesses a controlled substance listed in Penalty Group 1" and that offense is third-degree felony "if the amount of the controlled substance possessed is . . . one gram or more but less than four grams"). Rackley entered an open plea to the charges and requested that the district court assess his punishment. As part of his plea paperwork, Rackley signed a document entitled "WRITTEN PLEA AGREEMENT" containing his judicial confession to the crime and waivers of several of his rights, including his right to appeal. In addition, the plea paperwork reflects that the State agreed to reduce the charged offense to the lesser offense of possession of less than one gram of methamphetamine, see id. § 481.115(b) (providing that offense "is a state jail felony if the amount of the controlled substance possessed is . . . less than one gram"), but the paperwork does not specify whether this reduction was in exchange for Rackley agreeing to enter a guilty plea, see Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (explaining that charge bargain in which defendant agrees to enter guilty plea "to a lesser or related offense" is plea-bargain agreement). The district court found Rackley guilty and assessed his punishment at two years' confinement in the Texas Department of Criminal Justice's State Jail Division. See Tex. Penal Code § 12.35(a) (setting out permissible punishment range for state-jail felony). However, the trial court suspended the sentence and instead placed him on five years' community supervision. After sentencing Rackley, the district court issued a certification of Rackley's right of appeal, specifying that this case "is not a plea-bargain case, and the defendant has the right of appeal."

Based on the record before this Court, it appears that the district court's certification, signed September 14, 2017, may be incorrect. See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (explaining that when determining whether appellant has right to appeal, appellate courts examine trial court's certification for defectiveness, defined as certification that is "correct in form but which, when compared to the record before the court, proves to be inaccurate"). Therefore, we abate the appeal and remand the case to the district court either to issue a new certification or to convene a hearing and to issue findings of facts and conclusions of law explaining whether there was a plea-bargain agreement in this case; whether that agreement, if any, affects Rackley's ability to challenge his conviction in this case; whether the district court granted Rackley permission to appeal if there was a plea bargain; and whether Rackley's presentence waiver of his right to appeal was effective. See Tex. R. App. P. 37.1 (requiring appellate court to notify parties if there appears to be defect in certification); Dears, 154 S.W.3d at 614 (stating that appellate courts have authority under Rules of Appellate Procedure "to obtain another certification, whenever appropriate").

The district court clerk is instructed to forward to this Court a supplemental clerk's record containing the amended certification or the findings and conclusions no later than March 1, 2018. See Tex. R. App. P. 34.5(c) (stating that if appellate court "orders the trial court to prepare and file findings of fact and conclusions of law as required by law, or certification of the defendant's right of appeal as required by these rules, the trial court clerk must prepare, certify, and file in the appellate court a supplemental clerk's record containing those findings and conclusions").

It is ordered on January 12, 2018. Before Justices Puryear, Field, and Bourland Abated and Remanded Filed: January 12, 2018 Do Not Publish