Ex Parte Marco Antonio Contreras v. State ( 2021 )

Order filed March 9, 2021.
In The
Fourteenth Court of Appeals
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NO. 14-20-00397-CR
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EX PARTE MARCO ANTONIO CONTRERAS
On Appeal from County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 2285006
ORDER
On December 11, 2020, pursuant to Tex. R. App. P. 37.1, the clerk of this
court by letter requested the trial court to file a proper certification of the
defendant’s right of appeal with the trial court clerk, request the trial court clerk to
prepare and certify a supplemental clerk’s record containing the certification, and
file the supplemental clerk’s record with this court withing 15 days of the notice..
On January 6, 2021, the clerk of this court by letter notified the trial court
that the supplemental clerk’s record had not had not been received and requested
that record at the earliest possible date.
On January 25, 2021, the clerk of this court by letter again notified the trial
court that the supplemental clerk’s record had not been received.
On January 28, 2021, the trial court clerk filed the following in an
information sheet:
On January 29, 2021, the State filed a letter stating in part:
This letter is to respectfully disagree with the Clerk’s assessment and
submit that a trial court’s order denying a pretrial application seeking
habeas corpus relief is an appealable order which requires the trial court
to enter a certification of the defendant’s right of appeal. See Ex parte
Schmidt, 109 S.W.3d 480, 481 (Tex. Crim. App. 2003) (explaining that,
when a trial court has jurisdiction to issue a writ of habeas corpus, the
trial court’s denial of habeas corpus relief can be appealed); Ex parte
Stevens, No. 03-19-00103-CR, 2019 WL 1123457, at *1 (Tex. App.—
Austin Mar. 11, 2019, no pet.) (mem. op., not designated for
publication) (“An order denying a pretrial application seeking habeas
corpus relief is an appealable order.”); Ex parte Flores, 483 S.W.3d
632, 637 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“Pretrial
habeas corpus proceedings are separate criminal actions, and the
applicant has the right to an immediate appeal before trial begins.”); see
also Tex. R. App. P. 25.2(a)(2) (“The trial court shall enter a
certification of the defendant’s right of appeal each time it enters a
judgment of guilt or other appealable order other than an order
appealable under Code of Criminal Procedure Chapter 64.”).
Accordingly, the trial court is required to certify Appellant’s right to
appeal the trial court’s order denying Appellant’s pretrial application
for habeas corpus relief in this case and, moreover, the Clerk’s Office is
required to include that certification in the clerk’s appellate record. See
TEX. R. APP. P. 25.2(d) (“If the defendant is the appellant, the record
must include the trial court’s certification of the defendant’s right of
appeal under Rule 25.2(a)(2).”).
We agree with the State.
On February 4, 2021, we issued an order stating:
This accelerated appeal is from an appealable order, specifically
the denial of a pretrial application for writ of habeas corpus.
Accordingly, the trial court is required to certify appellant’s right of
appeal. See Tex. R. App. P. 25.2(a)(2)). Without a certification, this
court is required to dismiss the appeal. See Tex. R. App. P. 25.2(d).
Accordingly, we direct the trial court to review the record, file a
proper certification of the defendant’s right of appeal, and have a
supplemental clerk’s record containing a certification transmitted to
our court on or before February 15, 2021.
As of this date, this court has not received a proper certification of
defendant’s right of appeal. We are obligated to determine whether a certification
is defective and take appropriate action. Dears v. State, 154 S.W.3d 610 (Tex.
Crim. App. 2005).
Accordingly, we order the Honorable Franklin Bynum, judge of County
Criminal Court at Law No. 8 of Harris County, to review the record, sign and file
with the trial court clerk a proper certification of the defendant’s right of appeal.
We further order the trial court clerk to prepare, certify, and file in this court a
supplemental clerk’s record containing that certification to this court within 10
days of the date of this order.
PER CURIAM
Panel Consists of Chief Justice Christopher and Justices Spain and Wilson.