Benino DeLaGarza v. State
13-15-00437-CR
| Tex. App. | Sep 25, 2015Background
- Appellant Benino DeLaGarza appealed his conviction from the 377th District Court of Victoria County, Texas (trial cause no. 15-04-28606-D).
- The trial court’s certification in the record indicates the defendant does not have the right to appeal per Texas Rule of Appellate Procedure 25.2(a)(2).
- Texas appellate rules require a certification showing a right to appeal be part of the record; absent such a certification, the appeal must be dismissed. See Tex. R. App. P. 25.2(d).
- The court explained the certification requirement exists to separate appealable from non-appealable cases early and efficiently (to avoid unnecessary time and expense).
- The court reminded that trial counsel’s duties extend beyond sentencing to advising clients about appeal rights and taking steps to pursue an appeal.
- The court ordered appellant’s lead appellate counsel, Micah Hatley, to review the record within 30 days, determine whether DeLaGarza has a right to appeal, and report findings; if counsel concludes a right exists, counsel must file a motion explaining substantive reasons and attach supporting record documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal can proceed given the trial-court certification states no right to appeal | DeLaGarza (appellant) seeks to proceed with appeal | State relies on certification showing no right to appeal and rules requiring dismissal without proper certification | Court ordered counsel to investigate and either obtain/identify an amended certification or file a motion showing why a right to appeal exists; did not allow immediate appeal to proceed |
| Whether trial counsel’s post-sentencing duties include advising about appeal rights | Appellant argues counsel must have considered/acted on appeal rights | State notes certification controls unless corrected or shown otherwise | Court reiterated precedent that trial counsel’s duties continue after sentencing to advise and take steps to pursue appeal |
| Standards for curing a defective or absent certification | Appellant may rely on amended certification or motion explaining why right exists | State requires certification or a motion with record support to avoid dismissal | Court required counsel to file a motion with factual support, legal analysis, and record documents if claiming a right to appeal |
| Burden of proof for assertions that certification is incorrect | Appellant must show facts in the record or an amended certification supporting appealability | State relies on official certification until rebutted | Court demanded an analysis and attached record documents; any factual allegations must be true and supported by the record |
Key Cases Cited
- Greenwell v. Ct. of Apps. for the Thirteenth Jud. Dist., 159 S.W.3d 645 (Tex. Crim. App. 2005) (certification requirement purpose: separate appealable from non-appealable cases early)
- Hargesheimer v. State, 182 S.W.3d 906 (Tex. Crim. App. 2006) (discusses certification and appellate process efficiency)
- Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) (trial counsel’s duties continue after sentencing to advise on appeal and pursue it)
- Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (motions to overcome defective certification must include true factual allegations supported by the record)
- Woods v. State, 108 S.W.3d 314 (Tex. Crim. App. 2003) (recitations in notice of appeal must be true and supported by the record)
- Carroll v. State, 119 S.W.3d 838 (Tex. App.—San Antonio 2003, no pet.) (appellate certification form may be modified where form does not capture circumstances conferring a right to appeal)