Opinion
NO. 03-18-00124-CR
04-17-2018
Ex parte Vester Saylee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-08-904131 , THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION
PER CURIAM
Appellant Vester Saylee seeks to appeal the trial court's denial of her application for writ of habeas corpus. See Tex. Code Crim. Proc. art. 11.072, § 8.
The appellate rules require the trial court to certify 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). We are required "to examine a certification for defectiveness, and to use Rules 37.1 and 34.5(c) to obtain another certification, whenever appropriate." Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (citing Tex. R. App. P. 37.1, 34.5(c)). A defective certification is one "which is correct in form but which, when compared with the record before the court, proves to be inaccurate." Id.
In this case, the trial court has certified that this "is a plea-bargain case and the defendant has no right of appeal." The certification also contains hand written notations that indicate that the "initial case" was a plea-bargain case and that "This is a habeas proceeding." A review of the record reveals that these notations are accurate. The certification as a whole, however, does not accurately reflect appellant's right of appeal as it indicates that appellant has no right of appeal but an order denying an application for writ of habeas corpus arising from a community-supervision case is an appealable order. See Tex. Code Crim. Proc. art. 11.072, § 8 ("If the [habeas corpus] application is denied in whole or part, the applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate Procedure."). Because the certification does not accurately reflect appellant's right of appeal, it is defective. See Dears, 154 S.W.3d at 614.
Accordingly, we abate this appeal and remand the cause to the trial court for entry of an amended certification that accurately reflects appellant's right of appeal in this habeas proceeding. Once entered, the certification shall be included in a supplemental clerk's record and filed with this Court no later than May 1, 2018.
It is so ordered on this the 17th day of April, 2018. Before Chief Justice Rose, Justices Goodwin and Field Abated and Remanded Filed: April 17, 2018 Do Not Publish