Opinion
No. 05-05-01586-CR
Opinion Filed April 12, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-83942-03. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
Chad Willhoite was convicted of driving while intoxicated, second. The appeal was transferred from this Court to the Eighth Court of Appeals pursuant to a transfer order from the Texas Supreme Court. The appeal was dismissed because appellant did not obtain a rule 25.2(d) certification from the trial court showing he had the right to appeal. See Willhoite v. State, No. 08-05-00145-CR (Tex.App.-El Paso May 5, 2005, no pet.). Appellant thereafter filed an application for writ of habeas corpus seeking an out-of-time appeal. Following a hearing, the trial court denied appellant relief. We affirm the trial court's order. In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam). We will uphold the trial court's ruling absent an abuse of discretion. Id. In conducting our review, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial judge's application of the law to the facts, if the question turns on an evaluation of credibility and demeanor. Id. If the question turns on an application of legal standards, we review the determination de novo. Id. Appellant's brief was due on March 17, 2006. Rather than filing a brief, appellant filed a motion to extend time pending this Court's receipt of the record from the underlying conviction. On March 23, 2006, we denied the motion without prejudice to appellant explaining why the record of the underlying conviction was necessary to the disposition of this appeal. Appellant tendered his brief on April 7, 2006, three days before the submission date and filed an extension motion on April 10, 2006. We denied the extension motion. Therefore, no brief is before us and we will review the trial court's ruling based on what appellant raised in his habeas corpus application and argued in the trial court. See Tex.R.App.P. 31.1. Rule 25.2(d) states:
If the defendant is the appellant, the record must include the trial court's certification of the defendant's right to appeal under Rule 25.2(a)(2). The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2). The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.Tex.R.App.P. 25.2(d). Rule 25.2(a)(2) requires the trial court to "enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order." Case law puts the burden on appellate courts to determine the accuracy of certifications that have been filed. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex.Crim.App. 2005). The rules do not, however, specify whether the appellate court or appellant has the burden to obtain a certification when none has been filed with the appellate court. In this case, once the El Paso court determined the certification had not been filed with the record, it put the duty of obtaining the certification on appellant. The court gave appellant thirty days to obtain the certification, and appellant failed to respond. See Willhoite v. State, No. 08-05-00145-CR. Nothing in rule 25.2 precluded the appellate court from placing that burden to obtain the missing certification on appellant. See generally Tex.R.App.P. 25.2(d), (f). In the habeas corpus hearing, the trial judge found that appellant's attorney "could have presented [the certification form] to the Court in chambers or in the courtroom for the Court to sign. [Counsel] was negligent in not doing that, and for that reason, [appellant's] appeal was dismissed." Although appellant contended his right to appeal was improperly abrogated, the El Paso court's placing of the burden on appellant to obtain the certification was no more onerous than the requirement of former rule 25.2(b) that certain information be contained in a notice of appeal following a plea bargain. Nor does the fact that different appellate courts may handle the issue of a missing certification in different ways entitle appellant to relief. To conclude otherwise would be to allow an appellant whose case has been transferred to another appellate court to disregard the procedures of that court, have his appeal dismissed, and then obtain a new appeal to this Court via habeas corpus. We decline to open the door to such a practice when only minimal effort is necessary to obtain a rule 25.2(d) certification of the right to appeal. Having reviewed the record, we conclude, under the facts of this case, that the trial court did not abuse its discretion in denying appellant habeas corpus relief.