Ex Parte Tiffany Marie Dunkle ( 2023 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Appellate case name: Ex parte Tiffany Marie Dunkle
Appellate case number: 01-23-00046-CR
Trial court case number: 0996707A
Trial court: 183rd District Court of Harris County
Appellant, Tiffany Marie Dunkle, has a filed a notice of appeal of the trial court’s March
22, 2019 order denying her application for writ of habeas corpus. Although the clerk’s record
contains a signed, written order denying appellant’s application for writ of habeas corpus, the
clerk’s record does not include a copy of the trial court’s certification of appellant’s right of
appeal from the order denying her application for writ of habeas corpus. See TEX. R. APP. P.
25.2(a)(2), (d). On January 31, 2023, this Court abated appellant’s appeal and remanded the case
to the trial court for the trial court to execute a certification of appellant’s right to appeal that
complied with Texas Rule of Appellate Procedure 25.2(d) and indicated whether appellant had
the right to appeal from the trial court’s March 22, 2019 order denying her application for writ
of habeas corpus. See TEX. R. APP. P. 25.2(a)(2), (d), 37.1.
The Texas Rules of Appellate Procedure require the trial court to certify a defendant’s
right of appeal each time it enters a judgment of guilt or other appealable order. See TEX. R.
APP. P. 25.2(a)(2). “The denial of an application for writ of habeas corpus arising from a
community-supervision case is an appealable order.” Ex parte Mortland, Nos. 03-10-00449-CR,
03-10-00450-CR, 2011 WL 255764, at *1 (Tex. App.—Austin Jan. 27, 2011, no pet.) (mem. op.,
not designated for publication); see also TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8; Ex parte
Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008); Ex parte King, No. 03-18-00062-CR,
2018 WL 3849468, at *3 (Tex. App.—Austin Aug. 14, 2018, no pet.) (mem. op. and order, not
designated for publication).
On February 2, 2023, the trial court clerk filed a supplemental clerk’s record containing a
certification stating that this was “a plea-bargain case, and [appellant] ha[d] NO right of appeal.”
This certification does not conform to the record on appeal. Cf. Ex parte King, 2018 WL
3849468, at *3; Ex parte Mortland, 2011 WL 255764, at *1. Although appellant entered a
plea-bargain agreement for the underlying offense, the appeal here concerns the trial court’s
March 22, 2019 denial of her application for writ of habeas corpus under Texas Code of
Criminal Procedure article 11.072. There is nothing in the record that indicates that appellant
does not have a right to appeal from the trial court’s denial of her application for writ of habeas
corpus. Because the trial court’s certification does not accurately reflect appellant’s right of
appeal in this habeas case, it is defective. See Ex parte King, 2018 WL 3849468, at *3; Ex parte
Mortland, 2011 WL 255764, at *1.
The Court is required to “examine a certification for defectiveness” and obtain a
corrected certification if the certification appears to be defective. Dears v. State, 154 S.W.3d
610, 614 (Tex. Crim. App. 2005); Ex parte King, 2018 WL 3849468, at *3; Ex parte Mortland,
2011 WL 255764, at *1. Accordingly, we direct the trial court to execute an amended
certification of appellant’s right to appeal that complies with Texas Rule of Appellate Procedure
25.2(d) and that accurately reflects appellant’s right to appeal from the trial court’s March 22,
2019 order denying appellant’s application for writ of habeas corpus.
The trial court clerk is directed to file a supplemental clerk’s record containing an
amended certification of appellant’s right of appeal from the order denying her application for
writ of habeas corpus. The supplemental clerk’s record shall be filed with this Court no later
than 30 days from the date of this order. See TEX. R. APP. P. 34.5(c)(2).
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record is filed with the Clerk of this Court.
It is so ORDERED.
Judge’s signature: _____/s/ Julie Countiss_______
 Acting individually Acting for the Court
Date: February 7, 2023
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