Justin Hernandez v. the State of Texas

Opinion

NUMBER 13-22-00345-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JUSTIN HERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

ORDER OF ABATEMENT Before Justices Longoria, Hinojosa, and Silva Order Per Curiam

This cause is before the Court on its own motion. Appellant Justin Hernandez is

attempting to appeal a conviction in trial court cause number 20FC-0583C in the 94th

District Court of Nueces County, Texas. The trial court’s certification of the appellant’s

right to appeal indicates that appellant entered a plea bargain and does not have the right

to appeal. See TEX. R. APP. P. 25.2(a)(2). Accordingly, on July 26, 2022, we directed appellant’s counsel to review the record and determine, identify, and explain if appellant

has a right to appeal. On August 26, 2022, appellant’s counsel filed a response asserting

that there is an error in the trial court’s certification which requires correction.

Upon review of the response and the clerk’s record, we have determined the trial

court’s certification of appellant’s right of appeal is incorrect or otherwise defective. See

Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App. 2005); see also TEX. R. APP.

P. 34.5(c), 37.1. A defective certification includes a certification that is correct in form, but,

when compared with the record before the court, proves to be inaccurate. Dears, 154

S.W.3d at 614.

Because the trial court’s certification of defendant’s right to appeal is defective, we

abate and remand this case to the trial court. The trial court shall cause a hearing to be

held to determine whether: (1) the trial court’s certification of appealability is correct; and

(2) the appellant has the right of appeal. We further direct the trial court to issue findings

of fact and conclusions of law regarding these issues. The trial court’s amended

certification, if any, and any orders it enters shall be included in a supplemental clerk’s

record. The trial court is directed to cause the supplemental clerk’s record and

supplemental reporter’s record to be filed with the Clerk of this Court within thirty days of

the date of this order.

PER CURIAM

Do not publish.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

Delivered and filed on the 9th day of September, 2022.