Jorge Gutierrez v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-12-00452-CR

Jorge Gutierrez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. D-1-DC-10-203162, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant pled not guilty to a charge of capital murder. He was convicted by the jury and sentenced to life imprisonment. The trial court's certification of his right to appeal, however, states that the case was a plea-bargain case and that appellant has no right to appeal. ⁽¹⁾

In determining whether an appellant in a criminal case has the right to appeal, we examine the trial court's certification for defectiveness, defined as a certification that is "correct in form but which, when compared to the record before the court, proves to be inaccurate." Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). If the certification appears to be defective, we must obtain a correct certification. Id. at 614-15; see also Tex. R. App. P. 34.5(c), 37.1.

In this case, the record does not support the trial court's certification that appellant entered into a plea bargain and has no right to appeal. Therefore, we abate the appeal and remand it to the trial court to issue an amended and corrected certification. See Dears, 154 S.W.3d at 614-15; Tex. R. App. P. 37.1. The trial court clerk is instructed to forward a supplemental clerk's record containing the amended certification to the clerk of this court no later than December 21, 2012.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton and Henson

Abated

Filed: November 16, 2012

Do Not Publish

1. Appellant and his trial counsel both signed the certification form.