GASPAR-QUINTANILLA v. STATE

No. 01-17-00264-CR.

Mijael Gaspar-Quintanilla, v. The State of Texas.

Court of Appeals of Texas, First District, Houston.


Attorney(s) appearing for the Case

David A. Escamilla , Stacey Soule , Luis Landeros , for Mijael Gaspar-Quintanilla, Appellant.


ORDER

HARVEY BROWN, Judge.

The record contains a certification of the defendant's right to appeal, which was signed by the trial judge, but contains no marks indicating whether the defendant has the right to appeal. A second certification was signed that appears to grant the defendant the right to appeal.

The record does not contain a plea bargain, but the judgment of conviction indicates that defendant agreed to plead no contest in return for a sentence of 75 days in the Travis County Jail or Correctional Center. Thus, it appears that this is a plea-bargain case.

The State has filed a motion to dismiss, contending that both certifications of the defendant's right to appeal are defective, that the record contains no affirmative statement by the trial court that permission to appeal was granted and that permission may not be assumed from an ambiguous record. But, the trial court signed an order purporting to grant permission to appeal and this does not conflict with the prior certification. This certification granting the right to appeal also contains handwritten notes above the trial court's signature appear that do not appea to relate to the defendant's right to appeal. Thus, clarification is needed.

The Rules of Appellate Procedure require us to dismiss an appeal unless a certification showing that the appellant has the right to appeal has been made part of the record. See TEX. R. APP. P. 25.2(a)(2). The rules also provide that an amended trial court's certification of the defendant's right to appeal correcting a defect or omission may be filed in the appellate court. See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1. Further, when we have a record, we are obligated to review the record to ascertain whether the certification is defective and, if it is defective, we must use Rules 37.1 and 34.5(c) to obtain a correct certification. Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005); see TEX. R. APP. P. 34.5(c), 37.1.

Accordingly, we abate this appeal and remand the cause to the trial court for further proceedings. On remand, the trial court shall conduct a hearing within 20 days of the date of this order at which a representative of the Travis County District Attorney's Office and appellant's appointed counsel shall be present. Appellant shall also be present for the hearing in person or, if appellant is incarcerated, at the trial court's discretion, appellant may participate in the hearing by use of a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound.*

We direct the trial court to:

1) Make a finding regarding whether or not appellant has the right to appeal; 2) If necessary, execute an amended certification of appellant's right to appeal; 3) Make any other findings and recommendations the trial court deems appropriate; and 4) Enter written findings of fact, conclusions of law, and recommendations as appropriate, separate and apart from any docket sheet notations.

The trial court shall have a court reporter, or court recorder, record the hearing. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings, recommendations, and orders with this Court within 35 days of the date of this order. The court reporter is directed to file the reporter's record of the hearing within 35 days of the date of this order. If the hearing is conducted by video teleconference, a certified recording of the hearing shall also be filed in this Court within 35 days of the date of this order.

The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when records that comply with our order are filed with the Clerk of this Court. The court coordinator of the trial court shall set a hearing date and notify the parties.

It is so ORDERED.

FootNotes


* On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State.

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