Martin Varela-Olvera Jr. v. the State of Texas

Opinion

NUMBER 13-22-00066-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MARTIN VARELA-OLVERA JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 25th District Court of Gonzales 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, Martin Varela-Olvera

Jr., is attempting to appeal a conviction in trial court cause number 306-17-B. The trial

court's certification of the defendant's right to appeal indicates appellant has waived the

right to appeal and he has no right to appeal. See TEX. R. APP. P. 25.2(a)(2). Accordingly,

on February 17, 2022, we directed appellant’s counsel to review the record and determine, identify, and explain if appellant has a right to appeal.

Upon review of the response and reporter’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 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 (1) whether the trial court’s certification of appealability is correct and

(2) whether 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 a 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Do not publish.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 23rd day of March, 2022.