Ex Parte Jose C. Loredo ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00301-CR
Ex parte Jose C. Loredo
FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
NO. 095790, HONORABLE ROBERT UPDEGROVE, JUDGE PRESIDING
ORDER AND MEMORANDUM OPINION
PER CURIAM
Jose C. Loredo has filed a notice of appeal, seeking review of the trial court’s denial
of his application for writ of habeas corpus. However, the clerk’s record does not include (1) an
appealable order or (2) the trial court’s certification of Loredo’s right to appeal.1
Loredo filed his application for writ of habeas corpus on March 6, 2015, and the
trial court’s docket sheet and Loredo’s notice of appeal both state that a hearing was held on the
application on April 21, the same date the State filed its response to the application. Loredo’s
notice of appeal states that the application was denied by operation of law, citing to article 11.07,
section 3(c) of the code of criminal procedure. See Tex. Code Crim. Proc. art. 11.07, § 3(c).
However, article 11.07 applies only to an application for writ of habeas corpus seeking relief
from a felony conviction, and Loredo’s underlying convictions were for Class A misdemeanors.
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The record does contain one certification, but that is related to the original judgments of
conviction, not to this habeas proceeding.
Therefore, Loredo’s application was not overruled by operation of law, see id., and the clerk’s
record does not reflect that the trial court has signed an appealable order.
Because of this uncertainty, upon remand and if the trial court has made a
determination of the merits of Loredo’s application, the court should enter (1) an appropriate final
order and (2) a certification of Loredo’s right to appeal. See Tex. R. App. P. 25.2(a). If the court
has not yet made a determination of the merits, the court should inform us in its certification of
Loredo’s right to appeal that the matter is still pending. The appealable order, if any, and the
certification of Loredo’s right to appeal should be sent to us in a supplemental clerk’s record no
later than July 13, 2015.
It is ordered June 19, 2015.
Before Justices Puryear, Pemberton, and Bourland
Abated and Remanded
Filed: June 19, 2015
Do Not Publish
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