Theodore Smith v. State ( 2017 )

NUMBER 13-17-00700-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
Theodore Smith, Appellant,
v.
The State of Texas, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
ORDER
Before Justices Rodriguez, Longoria, and Hinojosa
Order Per Curiam
Appellant, Theodore Smith, has filed a notice of appeal with this Court from his
conviction in trial court cause number 17FC-1908-B. The trial court’s certification of the
defendant’s right to appeal shows that the defendant does not have the right to appeal.
See TEX. R. APP. P. 25.2(a)(2). The Texas Rules of Appellate Procedure provide that an
appeal must be dismissed if a certification showing that a defendant has a right of
appeal is not made a part of the record. Id. R. 25.2(d); see id. R. 37.1, 44.3, 44.4. The
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purpose of the certification requirement is to efficiently sort appealable cases from non-
appealable cases so that appealable cases can “move through the system unhindered
while eliminating, at an early stage, the time and expense associated with non-
appealable cases.” Greenwell v. Ct. of Apps. for the Thirteenth Jud. Dist., 159 S.W.3d
645, 649 (Tex. Crim. App. 2005); see Hargesheimer v. State, 182 S.W.3d 906, 912
(Tex. Crim. App. 2006).
Within thirty days of date of this notice, appellant’s lead appellate counsel, Grant
Jones, is hereby ORDERED to: 1) review the record; 2) determine whether appellant
has a right to appeal; and 3) forward to this Court, by letter, counsel’s findings as to
whether appellant has a right to appeal and/or advise this Court as to the existence of
any amended certification. If appellant’s counsel determines that appellant has a right
to appeal, counsel is further ORDERED to file a motion with this Court within thirty days
of this notice, identifying and explaining substantive reasons why appellant has a right
to appeal. See TEX. R. APP. P. 44.3, 44.4; Dears v. State, 154 S.W.3d 610, 614–15
(Tex. Crim. App. 2005); see also, e.g., Carroll v. State, 119 S.W.3d 838, 841 (Tex.
App.—San Antonio 2003, no pet.) (certification form provided in appendix to appellate
rules may be modified to reflect that defendant has right of appeal under circumstances
not addressed by the form). The motion must include an analysis of the applicable case
law, and any factual allegations therein must be true and supported by the record. See
Dears, 154 S.W.3d at 614–15; cf. Woods v. State, 108 S.W.3d 314, 316 (Tex. Crim.
App. 2003) (construing former appellate rule 25.2(b)(3) and holding that recitations in
the notice of appeal must be true and supported by the record). Copies of record
documents necessary to evaluate the alleged error in the certification affecting
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appellant’s right to appeal shall be attached to the motion. See TEX. R. APP. P. 10.1,
10.2.
PER CURIAM
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 21st day of December 2017.
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