Glenn Smith v. State

• Court: Court of Appeals of Texas
• Decided: December 15, 2011
• Docket: 03-11-00464-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00464-CR

Glenn Smith, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-11-0026, HONORABLE DAN R. BECK, JUDGE PRESIDING

MEMORANDUM OPINION

PER CURIAM

Glenn Smith is appealing his conviction for the offense of driving while intoxicated,

for which he was sentenced to five years’ imprisonment. Included in the appellate record is a

certification from the district court concerning Smith’s right of appeal. The certification states that

this is a plea-bargain case, the defendant has no right of appeal, and the defendant has waived the

right of appeal. However, the certification appears to be inconsistent with other portions of the

appellate record.

The certification is dated January 26, 2011, but the judgment of conviction was

signed several months later, on June 9, 2011. Assuming both dates are correct, there would have

been no judgment of conviction from which the district court could have certified Smith’s right of

appeal at the time the certification was made. Cf. Tex. R. App. P. 25.2(a)(2) (“The trial court shall enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other

appealable order.”).

The record also contains a pretrial motion to suppress evidence filed by Smith.

Furthermore, according to the district court’s docket sheet, the court denied the motion. The

docket sheet additionally reflects that Smith had a pending plea of not guilty as of the time of

the suppression hearing and, following the adverse ruling, changed his plea to guilty. Under such

circumstances, Smith would have had a right to appeal the suppression ruling. See Stansberry

v. State, 239 S.W.3d 260, 262 n.9 (Tex. Crim. App. 2007). And, consistent with a recognition that

Smith had at least a limited right of appeal, we further observe, the district court appointed appellate

counsel for Smith after signing the judgment of conviction.1

We are required to examine a certification for defectiveness—“correct in form

but which, when compared to the record before the court, proves to be inaccurate”—and to use

Rules 37.1 and 34.5(c) to obtain an accurate certification. Dears v. State, 154 S.W.3d 610, 614

(Tex. Crim. App. 2005); see Tex. R. App. P. 34.5(c), 37.1. Given the apparent inconsistences

between the January 26 certification and the record before us, we abate this appeal for fourteen days

and instruct the district court to prepare and send to this Court an amended certification that indicates

whether this was in fact a plea-bargain case and the extent of Smith’s right of appeal, if any, from the

judgment of conviction. See Tex. R. App. P. 25.2(a)(2). A supplemental clerk’s record containing

1 We also note that while Smith’s appellate counsel seems to acknowledge the existence of a plea agreement at the time of judgment, he represents that (1) the January 26 certification was based on a different, earlier plea agreement that was ultimately withdrawn, and (2) there was no agreement as to punishment.

2 the district court’s amended certification shall be forwarded to the clerk of this Court no later than

December 29, 2011.

Before Chief Justice Jones, Justices Pemberton and Henson

Abated

Filed: December 15, 2011

Do Not Publish