Ex Parte Francisco Ortiz Cruz

Fourth Court of Appeals
San Antonio, Texas
September 1, 2022
No. 04-22-00533-CR
EX PARTE Francisco Ortiz CRUZ
From the County Court, Kinney County, Texas
Trial Court No. 11891CR
Honorable Dennis Powell, Judge Presiding
ORDER
On August 12, 2022, appellant filed a notice of appeal challenging the trial court’s order
denying his pretrial application for writ of habeas corpus. On August 30, 2022, the district clerk
filed the clerk’s record, which did not include a copy of the trial court’s certification of
appellant’s right to appeal under Rule 25.2 of the Texas Rules of Appellate Procedure. The
district clerk’s office informed this court that it has been unsuccessful in its attempts to obtain a
certification from the trial court.
The Rules of Appellate Procedure require the trial court to enter a certification of the
defendant’s right of appeal “each time it enters a judgment of guilt or other appealable order.”
TEX. R. APP. P. 25.2(a)(2). An order denying a pretrial application seeking habeas corpus relief
is a final appealable order. See Ex parte Schmidt, 109 S.W.3d 480, 481-82 (Tex. Crim. App.
2003) (reaffirming that when trial court has jurisdiction to issue writ of habeas corpus, denial of
relief can be appealed); Ex parte Gonzales, No. 04-19-00869-CR, 2020 WL 4046521, at *2 (Tex.
App.—San Antonio July 15, 2020, no pet.) (mem. op., not designated for publication) (“trial
court’s denial of appellant’s pretrial application for writ of habeas corpus is a final appealable
order”); Ex parte Matthews, 452 S.W.3d 8, 12 (Tex. App.—San Antonio 2014, no pet.) (order
denying relief in a pre-conviction habeas corpus proceeding “is immediately appealable ‘because
the habeas proceeding is in fact considered a separate ‘criminal action,’ and the denial of relief
marks the end of the trial stage of that criminal action and the commencement of the timetable
for appeal.’”).
This appeal is therefore ABATED, and the trial court is ORDERED to, no later than
SEPTEMBER 12, 2022, prepare its certification of appellant’s right of appeal from the order
denying appellant’s pretrial application for writ of habeas corpus as required by the Texas Rules
of Appellate Procedure and forward the certification to the district clerk for inclusion in the
record. See TEX. R. APP. P. 25.2(a)(2), 44.4; see, e.g., Ex parte Miller, No. 03-16-00137-CR,
2016 WL 2942004, at *1 (Tex. App.—Austin May 10, 2016, no pet.) (order & mem. op., not
designated for publication) (per curiam) (abating appeal and directing trial court to prepare and
file certification of appellant’s right of appeal from order denying pretrial habeas corpus relief).
We further ORDER the Kinney County District Clerk to, no later than September 16,
2022, file the supplemental record in this court containing the trial court’s certification. See TEX.
R. APP. P. 25.2(d), 34.5(c)(2).
_________________________________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of September, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court