Full Opinion (html_with_citations)

                             Fourth Court of Appeals
                                    San Antonio, Texas
                                        December 27, 2017

                                       No. 04-17-00597-CR

                                        Donald Lee HALL,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                   From the 198th Judicial District Court, Kerr County, Texas
                                   Trial Court No. B16-253
                         Honorable M. Rex Emerson, Judge Presiding


                                          ORDER
        The trial court’s certification in this appeal states that “the defendant has waived the right
to appeal guilt/innocence.” The clerk’s record contains a judgment and written plea papers
showing that the defendant entered an “open plea” of guilty without an agreed recommendation
for sentencing. When a defendant waives the right to appeal before sentencing and without an
agreed recommendation on punishment, the waiver is not valid. Washington v. State,
363 S.W.3d 589, 589-90
 (Tex. Crim. App. 2012); Ex parte Delaney,
207 S.W.3d 794, 799
 (Tex.
Crim. App. 2006) (when there is no recommended maximum punishment at the time the
defendant waives the right to appeal, the consequences of such waiver cannot be known, and the
waiver is not knowing and intelligent); see also Ex parte Broadway,
301 S.W.3d 694
, 696 n. 3
(Tex. Crim. App. 2009) (primary advantage to entering open plea is a relatively unlimited right
to appeal). Therefore, the trial court certification does not accurately reflect that the defendant
has the right to appeal, and is thus defective. See TEX. R. APP. P. 25.2(a)(2); Dears v. State,
154 S.W.3d 610, 614
 (Tex. Crim. App. 2005). Rule 25.2(d) of the Texas Rules of Appellate
Procedure requires the record to contain the trial court’s certification of the defendant’s right of
appeal under Rule 25.2(a)(2). TEX. R. APP. P. 25.2(d). It further provides, “The appeal must be
dismissed if a certification that shows the defendant has the right of appeal has not been made
part of the record under these rules.”
Id.

        Accordingly, the trial court is ORDERED to prepare and file an amended trial court
certification correcting the defect and showing that the defendant has the right to appeal, and the
trial court clerk is instructed file a supplemental clerk’s record containing said amended trial
court certification in this Court within fifteen (15) days from the date of this order. TEX. R. APP.
P. 25.2(f), (d); 34.5(c); 37.1; see Dears,
154 S.W.3d at 614
. All other appellate deadlines are
suspended pending resolution of the certification issue.


                                                   _________________________________
                                                   Rebeca C. Martinez, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 27th day of December, 2017.



                                                   ___________________________________
                                                   KEITH E. HOTTLE,
                                                   Clerk of Court