Lee v. State

• Decision Date: 27 October 2021
• Docket Number: 10-21-00149-CR
• Parties: XAVIER RASHAD LEE, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

XAVIER RASHAD LEE, Appellant
v.
THE STATE OF TEXAS, Appellee

No. 10-21-00149-CR

Court of Appeals of Texas, Tenth District

October 27, 2021

From the County Court at Law Walker County, Texas Trial Court No. 19-0416

Before Chief Justice Gray, Justice Johnson, and Justice Wright ^[1]

ABATEMENT ORDER

PER CURIAM

The following is a timeline of the events in this case:

• May 26, 2021 - Xavier Lee, who was then represented by court-appointed counsel John Williford, was convicted of the offense of interference with public duties and sentenced to two days' confinement in jail and a $1, 000 fine. The judgment of conviction and the trial court's docket sheet indicate that Lee had pleaded not guilty and had proceeded to a jury trial. The jury had found Lee guilty. Lee had then entered into an agreement with the State regarding punishment.

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That same day, the trial court signed its certification of Lee's right of appeal. The certification, which Lee and Williford also signed, indicates that the underlying case "is a plea-bargain case and the defendant has NO right of appeal."

• June 23, 2021 - Lee, acting pro se, filed in the trial court a document stating: "I would like to file this Motion for New Trial[, ] or in the Alternative to a Motion for New Trial[, ] I would like to Appeal the Judgment entered on May 26, 2021." We construed the document as a notice of appeal and filed it in the above cause number.

• August 9, 2021 - Attorney Frederick Wilson filed in the trial court a notice of appearance as attorney of record for Lee. Wilson confirmed with this Court, however, that he was representing Lee only for his motion for new trial.

• August 12, 2021 - The Clerk of this Court notified Lee by letter that we have not received the docketing statement in this appeal. See Tex. R. App. P. 32. The letter stated that the docketing statement must be filed within 21 days from the date of the letter. To date, Lee has not filed the docketing statement.

• August 18, 2021 - The clerk's record was filed in this appeal.

• September 24, 2021 - We received a letter from the court reporter stating that she had "received no written request or payment for the Reporter's Record from Mr. Wilson, the attorney of record."

Having reviewed the status of this appeal, we abate this cause to the trial court to resolve the following issues:

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Certification of Defendant's Right of Appeal

The certification of defendant's right of appeal, which states that the underlying case "is a plea-bargain case and the defendant has NO right of appeal," appears to be defective. See id. R. 25.2(d), 37.1.

The clerk's record indicates that Lee entered a plea of not guilty and proceeded through the guilt/innocence phase of trial to a jury verdict of guilty. The clerk's record indicates that it was only after the jury returned its verdict that Lee entered into an agreement with the State regarding punishment, thereby foregoing the punishment phase of trial. Nothing in the clerk's record indicates that Lee ever changed his plea to guilty or nolo contendere, signed any plea papers, or affirmatively waived his right to appeal.

A "plea bargain case" is defined in Rule of Appellate Procedure 25.2(a)(2) 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...