Eduardo Luna Jr. v. State

• Court: Court of Appeals of Texas
• Decided: March 21, 2018
• Docket: 13-18-00152-CR
• Status: Published

Opinion

NUMBER 13-18-00152-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

EDUARDO LUNA JR., APPELLANT,

V. THE STATE OF TEXAS, APPELLEE.

On appeal from the 107th District Court of Cameron County, Texas.

ORDER Before Chief Justice Valdez and Justices Contreras and Benavides Order Per Curiam

Appellant, Eduardo Luna, Jr., has filed a notice of appeal with this Court from his

conviction in trial court cause number 2016-DCR-1330-A. The trial court’s certification of

the defendant’s right to appeal shows that the defendant does not have the right to

appeal. See TEX. R. APP. P. 25.2(a)(2). The Texas Rules of Appellate Procedure

provide that an appeal must be dismissed if a certification showing that a defendant has

a right of appeal is not made a part of the record. Id. R. 25.2(d); see id. R. 37.1, 44.3,

44.4. The purpose of the certification requirement is to efficiently sort appealable cases

from non-appealable cases so that appealable cases can “move through the system

unhindered while eliminating, at an early stage, the time and expense associated with non-appealable cases.” Greenwell v. Ct. of Apps. for the Thirteenth Jud. Dist., 159

S.W.3d 645, 649 (Tex. Crim. App. 2005); see Hargesheimer v. State, 182 S.W.3d 906,

912 (Tex. Crim. App. 2006).

The Texas Court of Criminal Appeals has held that a trial counsel’s duties do not

end upon sentencing, but rather, include advising a client concerning the right to appeal

and “taking other steps to pursue an appeal.” See Jones v. State, 98 S.W.3d 700, 703

(Tex. Crim. App. 2003).

Within thirty days of date of this notice, appellant’s lead appellate counsel, Ed

Stapleton, is hereby ORDERED to: 1) review the record; 2) determine whether appellant

has a right to appeal; and 3) forward to this Court, by letter, counsel’s findings as to

whether appellant has a right to appeal and/or advise this Court as to the existence of

any amended certification. If appellant’s counsel determines that appellant has a right

to appeal, counsel is further ORDERED to file a motion with this Court within thirty days

of this notice, identifying and explaining substantive reasons why appellant has a right

to appeal. See TEX. R. APP. P. 44.3, 44.4; Dears v. State, 154 S.W.3d 610, 614–15

(Tex. Crim. App. 2005); see also, e.g., Carroll v. State, 119 S.W.3d 838, 841 (Tex.

App.—San Antonio 2003, no pet.) (certification form provided in appendix to appellate

rules may be modified to reflect that defendant has right of appeal under circumstances

not addressed by the form). The motion must include an analysis of the applicable case

law, and any factual allegations therein must be true and supported by the record. See

Dears, 154 S.W.3d at 614–15; cf. Woods v. State, 108 S.W.3d 314, 316 (Tex. Crim.

App. 2003) (construing former appellate rule 25.2(b)(3) and holding that recitations in

the notice of appeal must be true and supported by the record). Copies of record

documents necessary to evaluate the alleged error in the certification affecting 2 appellant’s right to appeal shall be attached to the motion. See TEX. R. APP. P. 10.1,

10.2.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 21st day of March, 2018.