Opinion
06-24-00029-CR 06-24-00030-CR06-24-00031-CR
11-22-2024
REGINALD REECE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court Bowie County, Texas Trial Court Nos. 21F0725-005, 20F0970-005, & 20F0292-005
Before Stevens, C.J., van Cleef and Rambin, JJ.
ORDER
Certifications of a defendant's right of appeal by the trial court are a creature of the 2003 amendments to the Texas Rules of Appellate Procedure. Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005) ("Effective January 2003 our rules of appellate procedure now require the trial judge to enter a certification of the defendant's right to appeal."). "The purpose of the certification requirement is to efficiently sort appealable cases from non-appealable cases." Greenwell v. Ct. of Appeals for Thirteenth Jud. Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005) (orig. proceeding).
Efficiency, however, is not the only concern. Regarding these certifications, the Texas 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." Dears, 154 S.W.3d at 614 (quoting Tex.R.App.P. 44.3); see Tex. R. App. P. 44.4. To that end, the Texas Court of Criminal Appeals held that a "defective" certification means more than one containing a defect of form. Id. Defects of substance are also subject to correction. Id. A certification is defective if the certification, "when compared with the record before the court [of appeals], proves to be inaccurate." Id. (emphasis added). "That way, a defendant . . . has [his] right to appeal preserved." Id.
The determination of the accuracy of a certification of the right of appeal is within the province of the appellate courts. Jones v. State, 488 S.W.3d 801, 804-05 (Tex. Crim. App. 2016). Indeed, determination of accuracy is an obligation on the courts of appeals. Id. at 805 ("An appellate court is obligated to review the record to determine if the certification is contrary to the record and therefore defective."). The Texas Court of Criminal Appeals has instructed the courts of appeals to do this without providing any instruction regarding a standard of review or any deference to the trial courts. See id.
Consistent with the above obligation, the courts of appeals have a duty to act when a certification of the right to appeal is defective, i.e., contradicted by the record. Id. Dears put it this way: "The certifications state that these are plea[-]bargain cases, but the record refutes this. Based on the record it had before it at the time of its ruling, the Court of Appeals should have concluded that these certifications were defective and acted accordingly." Dears, 154 S.W.3d at 615.
Marsh v. State, 444 S.W.3d 654, 659 (Tex. Crim. App. 2014) ("In Dears we held that the court of appeals is obligated to compare the certification with the record to ascertain whether a certification is defective and act accordingly." (Emphasis added)); see also Buck v. State, 601 S.W.3d 365, 366 (Tex. Crim. App. 2020) ("The certification was 'defective,' and the court of appeals had an obligation to have it corrected." (Emphasis added)).
In Dears, the Texas Court of Criminal Appeals reversed the court of appeals for failing to act. Id. Therefore, this Court will act. The question turns to the nature of this Court's action.
Corresponding with the duty placed on the courts of appeals, the courts of appeals have been given a right: the right to order the trial court to issue a correct certification. Marsh, 444 S.W.3d at 659 ("[T]he court of appeals had a right to order the trial court to produce an amended certification that corrects the defective one . . . .").
But there is a catch: a limitation on the ability of a court of appeals to act. The Texas Court of Criminal Appeals held that a court of appeals "overstep[s] its authority by prescribing exactly what the new certification should say." Id. (emphasis added). This prohibition on the courts of appeal "dictating the content" of a revised certification has its roots in an earlier decision issued shortly after the 2003 amendments to the Texas Rules of Appellate Procedure. Id. (citing Greenwell, 159 S.W.3d at 650 n.24). Greenwell dealt with a court of appeals that had directed a trial court to issue a revised certificate saying word-for-word that the case was "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 ha[d] the right of appeal." Greenwell, 159 S.W.3d at 647. In Greenwell, the defendant/appellant had filed both a pretrial motion and a pretrial habeas petition regarding the same subject matter. Id. The court of appeals issued the above-worded order to the trial court in the belief that the trial court, by ruling on the pretrial habeas petition, had also ruled on the pretrial motion. Id. at 648. The Texas Court of Criminal Appeals granted the writ of mandamus against the court of appeals, holding that, because the pretrial habeas petition was a separate proceeding from the criminal case, any habeas ruling did not apply to the criminal case and, hence, "nothing in the record indicate[d] that the trial court made a ruling, explicit or implicit," on the pretrial motion. Id. at 650. Marsh's prohibition on courts of appeals dictating the exact wording is consistent with Greenwell itself. See Marsh, 444 S.W.3d at 660. Also in Marsh, there was both a statement by the court of appeals of why the trial court's certification was wrong, id. at 559, and a finding by the Texas Court of Criminal Appeals (on regular appeal) that the trial court was right and the court of appeals was wrong, id. at 660.
We recognize the inherent tension between our obligation to determine the accuracy of a certification of the right of appeal, our duty to act when a certification is incorrect, and our right to order the trial court to issue a correct certification, on the one hand, and on the other, the prohibition against dictating the exact wording of a certification or even explaining, at this stage of the process, the basis for a finding that certifications are incorrect, i.e., defective.
That tension results in the following order of this Court:
We exercise Dears authority to hereby find that the certifications in cause numbers 21F725-005, 20F0970-005, and 20F0292-005 are defective. We adhere to Marsh by refraining from setting out the reasons for our finding, but we nonetheless exercise Marsh authority to hereby order the trial court to produce amended certifications that correct the defective ones.
Dears, 154 S.W.3d at 615 ("Based on the record it had before it at the time of its ruling, the Court of Appeals should have concluded that these certifications were defective and acted accordingly.").
Marsh, 444 S.W.3d at 659.
IT IS SO ORDERED.