Victor Manuel Hernandez A/K/A Victor Hernandez v. State
13-15-00473-CR
| Tex. App. | Oct 1, 2015Background
- Appellant Victor Manuel Hernandez filed a notice of appeal from conviction in cause no. 2015-DCR-361-A.
- The trial court’s certification in the record states the defendant does not have a right to appeal under Tex. R. App. P. 25.2(a)(2).
- Texas appellate rules require a proper certification showing a right to appeal be part of the record; absent that, the appeal must be dismissed. See Tex. R. App. P. 25.2(d).
- The certification requirement aims to separate appealable from non-appealable cases early to conserve resources (citing Greenwell and Hargesheimer).
- The Court reminded counsel that trial counsel’s duties continue after sentencing to advise and take steps to pursue an appeal (citing Jones v. State).
- The Court ordered appellant’s lead appellate counsel to review the record within 30 days, determine whether a right to appeal exists, and either (a) notify the court no right exists or (b) if a right exists, file a motion explaining and supporting why the right exists and attach supporting record documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal must be dismissed because trial-court certification shows no right to appeal | Hernandez contends an appeal was filed and should proceed | State relies on certification showing no right to appeal and rules requiring dismissal | Court ordered counsel to review and, if a right exists, file a motion showing why; did not yet dismiss pending counsel’s response |
| Whether counsel must investigate and, if warranted, file motion to establish a right to appeal despite certification | Hernandez (through counsel) can seek to demonstrate circumstances warranting an amended certification or other grounds for appeal | State expects dismissal unless certification amended or court persuaded by motion supported by record and law | Court confirmed counsel’s continuing duty and required a motion with legal analysis and record support if counsel finds a right to appeal |
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 and early filtering of non-appealable cases)
- Hargesheimer v. State, 182 S.W.3d 906 (Tex. Crim. App. 2006) (certification context)
- Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) (trial counsel’s duties continue post-sentencing to advise about and pursue appeals)
- Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (requirements and standards for motions seeking to overcome certification problems)
- Woods v. State, 108 S.W.3d 314 (Tex. Crim. App. 2003) (recitations in notices of appeal must be true and supported by the record)
- Carroll v. State, 119 S.W.3d 838 (Tex. App.—San Antonio 2003) (certification form may be modified where form does not address particular circumstances)