Omar Gerardo v. State ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00379-CR
____________________
OMAR GERARDO, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CR 30247
________________________________________________________ _____________
ORDER
In a certification signed on June 14, 2013, the trial court certified that this is
a plea-bargain case, that the defendant has no right of appeal, and that the
defendant waived the right of appeal. After we notified the parties that the appeal
would be dismissed, the trial court amended the certification to state that “the
defendant has file[d] a timely Motion for New Trial which was denied, and the
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appeal is from the denial of the Motion for New Trial and thus the defendant has
the right to appeal only the denial of his request for a new trial.”
A defendant does not have a right to appeal the denial of a motion for new
trial in a plea-bargain case. Estrada v. State, 149 S.W.3d 280, 283-84 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d). Consequently, Gerardo has a right of appeal
only if the trial court grants permission to appeal. See generally Ex parte De Leon,
400 S.W.3d 83, 89-90 (Tex. Crim. App. 2013) (describing circumstances where
trial court may grant permission to appeal a plea-bargain case); Willis v. State, 121
S.W.3d 400, 402 (Tex. Crim. App. 2003).
The amended certification is defective because it does not comply with the
form promulgated by the Court of Criminal Appeals. See Approval of Revision to
the Texas Rules of Appellate Procedure, Misc. Docket No. 11-006, 74 Tex. B.J.
938 (Tex. Crim. App. Oct. 17, 2011); see also Hargesheimer v. State, 182 S.W.3d
906, 911-12 (Tex. Crim. App. 2006) (disapproving procedure in which trial court
modified the certification form). The modified certification before us does not
unambiguously indicate whether the trial court intended to grant the defendant a
right to appeal any issue, or whether the trial court erroneously thought the
defendant could appeal solely from the trial court’s ruling on the defendant’s
motion for new trial.
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It is, therefore, ORDERED that the appeal is abated and the case is
remanded to the trial court for a proper certification of the defendant’s right of
appeal. See Tex. R. App. P. 37.1; see also Cortez v. State, No. PD-1349-12, 2013
WL 522094, at *3 (Tex. Crim. App. Sept. 18, 2013). We direct the trial court to
use the certification form promulgated by the Court of Criminal Appeals. The
certification shall be signed by Gerardo and his counsel. A supplemental clerk’s
record containing the amended certification, together with a supplemental
reporter’s record if the trial court conducts a hearing, shall be filed with the Court
of Appeals by December 16, 2013. All appellate timetables are suspended during
the abatement. The appeal will be reinstated without further order of this Court
when the supplemental clerk’s record is filed.
ORDER ENTERED November 14, 2013.
PER CURIAM
Before McKeithen, C.J., Kreger and Horton, JJ.
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