Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:On March 13, 2000, the appellant was found guilty by the trial court for the offense of aggravated sexual assault on a child. The record reflects that appellant pleaded guilty with the benefit of an agreed punishment recommendation. The record further reflects that the trial court followed the agreed recommendation in assessing punishment at life in the Texas Department of Criminal Justice – Correctional Institutions Division. Because appellant’s notice of appeal was not filed timely, the court dismissed the appeal for want of jurisdiction on June 8, 2000. Appellant subsequently filed a post-conviction application for writ of habeas corpus with the Court of Criminal Appeals alleging ineffective assistance of counsel in the failure to file a timely notice of appeal. The Court of Criminal Appeals agreed with appellant and granted him habeas corpus relief. The court explicitly set out the remedy for appellant as follows: “The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.” The Court of Criminal Appeals’ mandate issued on Feb. 18, 2004, with appellant filing a pro se notice of appeal the same day. As required by Texas Rules of Appellate Procedure 25.2(a)(2) and 25.2(d), the trial court thereafter entered its certification of appellant’s right to appeal. The trial court certified appellant’s right to appeal for the following reason: “Court of Criminal Appeals ordered, adjudged and decreed that an out of time appeal is Granted.” HOLDING:Dismissed. The printed reason for certifying appellant’s right to appeal has a narrow basis in fact when compared with the record, in that it appears the trial court interpreted the habeas corpus relief granted to appellant as properly invoking the court’s jurisdiction. The court of appeals reads the court of criminal appeals’ habeas corpus relief, however, as simply “turning the clock back” to the day of conviction, and providing appellant, “should he desire to prosecute an appeal,” the opportunity to timely file his notice of appeal at which point the requirements of the Rules of Appellate Procedure come into effect. Whenever a trial court gives a defendant “permission to appeal” as contemplated under Texas Rule of Appellate Procedure 25.2(a)(2), that defendant must possess a “right of appeal” independent of the rules of appellate procedure in order to invoke the court’s jurisdiction. The Texas Rules of Appellate Procedure do not establish appellate jurisdiction, but rather they set out procedures which must be followed in order to invoke a court’s jurisdiction over a particular appeal. For a plea-bargaining defendant, a trial court’s “permission to appeal” will only invoke a court’s appellate jurisdiction if the defendant also has a “right of appeal.” The trial court’s certification is defective in that it appears to find appellant’s right of appeal solely within the court of criminal appeals’ grant of “an out-of-time appeal.” Such a finding is misplaced as the court’s mandate simply placed appellant in the position he was in on the day of his conviction. However, above and apart from the improper reason for certification is the fact that appellant simply has no substantive right of appeal independent of the rules of appellate procedure. Assuming that appellant’s notice of appeal, containing the prayer that the trial court “accepts this Notice of Appeal,” was a sufficient request for permission to appeal, the trial court was required to enter a certification of appellant’s right of appeal. The trial court’s stated reason for permitting the appeal did not provide a right of appeal for appellant, and the court finds none on the face of the record. As this defect in certification appears to provide a right of appeal when the record is clear that appellant has no such right, it is unnecessary for the court to require the trial court to provide an amended certification before dismissing the appeal pursuant to Rule 25.2(d), the court concludes. OPINION:McKeithen, C.J.; McKeithen, C.J., Kreger and Horton, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.