Francisco Llanas v. the State of Texas ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00745-CR
Francisco Llanas, Appellant
v.
The State of Texas, Appellee
FROM THE 450TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-20-300570, THE HONORABLE BRAD URRUTIA, JUDGE PRESIDING
DISSENTING OPINION
Although I agree with the Court that this is a plea-bargain case and that the
motion to suppress was filed and ruled on after “trial” commenced, I disagree that dismissal is
the appropriate remedy at this time. For that reason, I dissent.
In a plea-bargain case, “a defendant may appeal only: (A) those matters that were
raised by written motion filed and ruled on before trial, (B) after getting the trial court’s
permission to appeal, or (C) where the specific appeal is expressly authorized by statute.” Tex.
R. App. P. 25.2(a)(2); see also Tex. Code Crim. Proc. art. 44.02 (providing that in plea-bargain
case, defendant “must have permission of the trial court” to appeal, “except on those matters
which have been raised by written motion filed prior to trial”). Thus, both the rules of appellate
procedure and the code of criminal procedure provide that in a plea-bargain case, a trial court
may give a defendant permission to appeal, even those matters that were not raised by written
motion filed and ruled on before trial, such as the motion to suppress in this case.
The question here is whether the district court gave Llanas permission to appeal
its ruling on his motion to suppress. The district court’s certification of Llanas’s right to appeal
is unclear on the matter. The district court checked conflicting boxes certifying that this case
was both: (1) “not a plea-bargain case, and the defendant has the right of appeal”; and (2) “a
plea-bargain case, but matters were raised by written motion filed and ruled on before trial and
not withdrawn or waived, and the defendant has the right of appeal.” In the second box, the
district court crossed out the words “is a plea bargain case.” Neither checked box is correct.
This was a plea-bargain case, and the motion to suppress was not filed and ruled on before trial.
However, both checked boxes also indicate that Llanas has the right of appeal.
Because this was a plea-bargain case, and the motion to suppress was not filed and ruled on
before trial, Llanas would have the right of appeal only if the district court had given him
permission to appeal. There is a box on the certification stating that this “is a plea-bargain case,
but the trial court has given permission to appeal, and the defendant has the right of appeal.”
Although the district court did not check that box, I do not find the lack of a check mark to be
dispositive at this time, because the district court appeared to mistakenly believe this was not a
plea-bargain case. As the Court notes, in addition to checking the two conflicting boxes
regarding the plea-bargain status of the case, the district court also checked but then crossed out
two other spaces for boxes certifying that this “is a plea-bargain case, and the defendant has NO
right of appeal” and that “the defendant has waived the right of appeal.”
Given the lack of clarity and accuracy in the certification before us, I do not
believe that it is appropriate at this time to dismiss the appeal. Rather, the appropriate remedy is
to abate the appeal and remand the case to the district court for entry of an amended certification
that provides clarity regarding whether the district court gave Llanas permission to appeal.
2
See Tex. R. App. P. 25.2(f) (providing for amended certification to be filed in appellate court);
34.5(c) (providing for supplementation of appellate record with certification); 37.1 (providing
that if certification in criminal case is defective, appellate court “must notify the parties of the
defect so that it can be remedied, if possible”); 44.4(a) (providing that appellate court “must not”
dismiss appeal if “trial court’s erroneous action . . . prevents the proper presentation of a case to
the court of appeals; and the trial court can correct its action”), (b) (providing that “[i]f the
circumstances described in [Rule 44.4](a) exist, the court of appeals must direct the trial court to
correct the error” and “will then proceed as if the erroneous action . . . had not occurred”); see
also Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (explaining that rules of
appellate procedure “reflect a strong interest in ensuring that a defendant’s right to appeal is not
abridged due to ‘defects or irregularities’ which can be corrected”).
If the district court gave Llanas permission to appeal the suppression ruling, then
Llanas has a right to appeal it, and this Court should not abridge that right. On the other hand, if
the district court did not give Llanas permission to appeal, then we can dismiss the appeal when
we receive the amended certification. Either way, an amended certification would provide this
Court with clarity regarding the district court’s intent, and I do not believe we should dismiss an
appeal in a criminal case absent such clarity. 1
1
Although not dispositive, I find it notable that the State has not filed a motion to
dismiss this appeal and briefed only the merits of the district court’s ruling on the motion to
suppress. The Court is dismissing this appeal sua sponte, after submitting the appeal on the
briefs, without providing any notice to the parties. Although we are not required in a criminal
case to provide such notice, I believe that under the circumstances here, we should at least
inform the parties that we are questioning our jurisdiction and provide them with an opportunity
to file a response. Cf. Tex. R. App. P. 42.3(a) (providing that in civil case, appellate court may
dismiss appeal for want of jurisdiction “on its own initiative after giving ten days’ notice to
all parties”).
3
Because the Court is dismissing this appeal without first seeking clarification of
the district court’s certification of Llanas’s right of appeal, I dissent.
__________________________________________
Gisela D. Triana, Justice
Before Justices Baker, Triana, and Smith
Filed: October 3, 2024
Do Not Publish
4