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Click here for the full text of this decision FACTS:The state moves to dismiss the appeal of Ronald Thacker Hargesheimer (appellant), because the trial court did not file a certification indicating that appellant had a right to appeal. Instead, the trial court certified, per Texas Rule of Appellate Procedure 25.2(a)(2), that “the defendant has waived the right of appeal.” HOLDING:Abated and remanded. Among the documentation provided to this court by the state in support of its motion is one entitled “defendant’s plea on community supervision revocation.” Therein, the appellant not only pleaded “true” to various allegations in the motion to revoke but also waived his right to appeal. The document states that “the State and defense [had] no agreed recommendation for the court” as to punishment. Thus, this is a pre-sentence waiver of the right to appeal accompanied by no bargain with or recommendation from the state as to punishment. Such waivers are invalid, as a matter of law. Ex parte Thomas, 545 S.W.2d 469 (Tex. Crim. App. 1977). The court distinguishes recent opinions of the Texas Court of Criminal Appeals involving the validity of agreements waiving a defendant’s right to appeal. Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003); Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000). The pivotal facts in those cases differ from the facts depicted in the materials appended to the state’s motion to dismiss. In Blanco, the defendant and state entered into a plea bargain wherein the defendant agreed to waive appeal in exchange for the state’s recommendation that he be sentenced to no more than 16 years in prison. Moreover, the sentenced levied fell within that range. In Monreal, the jury had not only found the defendant guilty but also assessed punishment before the defendant agreed to waive his right to appeal. Those circumstances, which were considered determinative in Monreal, are missing here. Instead, the limited record illustrates that there was no agreement with regard to punishment once guilt was adjudicated. And, that appellant had yet to be sentenced distinguishes the case from Monreal. Instead, the items presented by the state depict a scenario much like that in Ex parte Thomas, wherein the defendant waived his appeal before sentence and without the benefit of a plea bargain. Neither Blanco nor Monreal overruled Thomas. The court concludes that Thomas is still good law when the circumstances deemed pivotal by it arise. The court is cognizant of the authority suggesting that an appellate court has no choice but to accept the trial court’s certification under Rule 25.2(a)(2) and dismiss if it fails to show that the appellant had a right to appeal. Yet, the courts of appeal do not unanimously follow that line of authority. Daniels v. State, 110 S.W.3d 174 (Tex. App. � San Antonio 2003, order). The court must take appropriate action under Texas Rule of Appellate Procedure 37.1 when defects are discovered and are not corrected by the parties. A certification that the appellant waived his right to appeal when the waiver is invalid as a matter of law is one such defect in the certification. The court denies, without prejudice, the state’s motion to dismiss. Pursuant to Rules 2, 34.5(c)(2) and 37.1 of the Texas Rules of Appellate Procedure, the court abates and remands the cause to the trial court with directions to re-certify whether appellant has a right to appeal. OPINION:Per curiam.

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