When the CCA adopted the 1997 amendments to the Rules of Appellate Procedure it included the helpful direction that they applied to cases pending on Sept. 1, 1997 "unless that application would not be feasible or would work injustice." As best as I can tell, the order adopting the 2003 amendments provides no such directive. Will cases whose records were filed prior to 1/1/03 now need to be amended to include the trial court's certification? See subparts (d) and (f) of the new rule. Will the records filed on or after 1/2/03, but in cases in which appeal was perfected prior to 1/1/03, need to include such certification? If the part of (d) that provides "the appeal must be dismissed if a certification . . . has not been made part of the record" works an injustice, should it be ignored? If a notice of appeal filed prior to 1/1/03 does not comply with Cooper and Johnson can it, or must it, now be amended in accordance with either Bayless or new Rule 25.2(f)? Does everyone have their certificates ready for use starting Thursday, since they "should be signed at the time the judgment or other appealable order is pronounced"? Are all judges (particularly our county judges) qualified to properly fill out the certification form? If an appeal is "perfected" by timely filing a sufficient notice of appeal (and nothing else according to Rule 25.2(b)) why must it later be dismissed for lack of a certification? I guess it is perfected, but hardly perfect. Can a trial judge change his mind about whether to give permission to appeal through an "amended" certification?

[This message was edited by Martin Peterson on 12-30-02 at .]

OK, I realize it has only been a week, but with 64 views I know this post has not been ignored. Surely someone will dare to discuss at least one of the questions I have posed. Is there no one willing to guess what the immediate effect of this rule change will be? Is the issue even one we should be concerned about? Would it not at least have been better if the court had addressed this in its order adopting the new rules? If you would rather, just limit your comments to Bayless. I found it amazing the court let so many appeals be dismissed before "clarifying" the meaning of Riewe. Will all those people now get out of time appeals or are they stuck with the law of the case? Is the court doing a good job of protecting the jurisprudence of the State when it lets lower court after court espouse bad law?

Martin, these things are just snafu. As the loser in Riewe, I just can't figure the CCA and their jurisdiction jurisprudence.

John, I would truly be worried about you if you were to say you could figure it out. After all, it took them long enough to decipher the meaning of the rules they wrote for themselves! Any irony in the fact that they waited to decide what (b)(3) meant until a few days before it was no longer relevant? Kind of reminds me of the Carr decision (last case to reverse a conviction because the state was not timely ready for trial), decided one week before Meshell. I just wish this were not the "normal" situation, even if the State did "win" a lot of appeals based on
Riewe as interpreted by most everyone other than those who counted.

The Thirteenth Court of Appeals has already jumped on the bandwagon and is sending out defect letters for appeals that are not properly certified. In most cases, of course, this will merely be a pain in the neck for defense counsel to run a certificate by the trial judge as one more hoop to jump over in the appeals process. The real question, it seems to me, is what happens when a trial judge certifies that there is no right to appeal in a case where jurisdiction is questionable. What effect does the trial judge's opinion about jurisdiction have on the appeal--If the appellate court can disregard the trial court's certification of no right to appeal, why are we requiring trial court certification in the first place? On the other hand, if the appellate court is bound by the trial court's findings on the certificate, is mandamus the only remedy?

Wow. That was quick. Sounds like an awful lot of paperwork to me, but certainly seems justified by the literal language of the rule. Not at all clear whether the appeals court can overrule or redetermine how the certification is or should have been filled out. The key function of the certification will be in those cases where permission would be required to appeal.

One more question, if the State obtains a Blanco waiver, but the record also contains a permission slip for an appeal, do we have an Alzarka result?

The Tenth Court has also chosen to apply the rule to all pending appeals. So the clerk of the appellate court sends out a letter pointing out the defect (that wasn't a defect at the time the record was filed). The appellant's attorney arranges for signing and filing of the certification. The District Clerk files it and prepares a supplemental record. The appellate clerk files the supplement and checks to be sure the record is now complete. Someones decides whether the court now truly has jurisdiction. In the case I am familiar with it was a jury trial on a not guilty plea (pretty simple to tell there is a right to appeal). And they want to cut the budget?

Yes, that's right the new rule does indeed have teeth. In Teel, No. 09-03-040-CR (04/10/03) the lack of correct certification meant lack of jurisdiction, even though it was clear the certification form was wrongly filled out by the trial judge. Hard to believe that was the intent of the CCA.

At the Criminal Appeals conference it was stated the certificate was required. However, I believe that it was rule 37.1 - the appellate clerk is to notify the parties when a certificate was not included and I believe the parties would have 30 days to supply the missing certificate. After that it was up to the appellate judges whether they wanted to issue an order to the trial judge to file the certificate or dismiss for want of jurisdiction. I believe that is how it was presented in the conference. So it appears the lack of a certificate may not mean automatic dismissal.

The Fourth Court took a different approach to curing an erroneous certificate. In Sanchez, 04-03-186-CR (05/07/03) it orders the trial court to correct the certificate to state that the appellant does not need permission to appeal. This type of review renders the certificate a useless thing, since the appeals court will apparently take it upon itself to examine whether it should have jurisdiction or whether the certificate is accurate. I am not sure that is what the CCA sought to accomplish either.

Forgive me for a knee-jerk reaction, but this only goes to show that appellate courts are just as capable of unfunded mandates as the legislature. Rather than make the defendant responsible for getting this bureaucratic form for his own appellate purposes, my county has instead had to print a gazillion three-part forms to add to pro se plea paperwork and other forms of disposition. And if the form doesn't have the exact wording stated by the CCA, it is void. Dumb.

Patricia, looks like the judges in San Antonio agree with what was said in May in Austin. Appeals there will now be conditionally dismissed with notice to the defendant of an opportunity to cure what the court deems to be a "defect" in the original certificate. Daniels, 110 S.W.3d at 177. Now the CCA will have to decide what the new rule really means, since, predictably, the intermediate courts have reached conflicting decisions. See Walker, No. 10-03-141-CR (05/28/03). The San Antonio court has also just answered the issue of the proper form of the certification in an appeal under 42.12 sec. 5(b). Carroll, No. 04-03-473-CR (08/27/03).

[This message was edited by Martin Peterson on 09-09-03 at .]

In Eastland, Rule 25.2(d) will merely be suspended where the trial court fails to comply with its ministerial duty to provide the appellant with a certificate, at least where the record otherwise reflects the appellant has a right of appeal. See Thomas, 11-03-194-CR (09/04/03). On paper, this new rule probably made sense; in practice, it has not made much sense.

The Seventh Court declined to follow either Teel or Walker and found an erroneous certificate (supposedly founded on a void waiver of appeal) to be a Rule 37.1 defect that should be cured by a "re-certification" from the trial judge. Hargesheimer, 07-03-0544-CR (01/23/04). Rule 37.1, of course, refers to action to be taken by the Clerk of the court, but that seems to have presented no obstacle. Though it cites Daniels, the decision is really closer to Sanchez, 109 S.W.3d 760 (since the State's motion is not conditionally granted).

Looks like it may still be a while before the CCA will tell us what 25.2(d) really means. Teel accepted the dismissal of his appeal and filed no PDR. Sanchez never cured the certificate problem and had his appeal dismissed as well (no PDR). Daniels was also ultimately dismissed for the same reason, but fortunately THE STATE filed a PDR (last October). Obviously the court may choose not to consider the issue in Daniels, since the State is hardly harmed by a dismissal of an appeal. In Thomas, the trial court apparently cured the defect on remand, but wouldn't you know, now the Appellant is dragging his feet in filing a brief.

And to top it all off: the Fourteenth Court thinks the recitals in the certificate "must be true and supported by the record". Waters, 124 S.W.3d at 826. Seems to me this confirms the certificate is a total waste of time for everyone concerned.

Regarding my post of 09-09-03, the Waco court decided not to wait for a decision in Daniels, PD-0924-03, from the CCA. In a split decision, it has now decided to change its position on its own. Walker is now erased. Harris, No. 10-03-258-CR (05/12/04). While Chief Justice Gray points out the problem with using Rule 37.1 as it is being used, the Tenth District will now handle the problem like the Seventh and Eighth. The case also suggests a new problem by stating that once the record has been filed (which is often when the "defect" is caught) the case must be abated in the appellate court for the trial court to have jurisdiction to correct the record. Rather than waiting for an occasion to interpret the existing rule, maybe the CCA should just adopt a new Rule 25.2- that answers all these questions (or trashes the idea of a certificate altogether, since it appears to be more trouble than it is worth).

So, do the clerk and court reporter have to prepare records even where the cert. says no right to appeal?

The issue of whether the clerk or reporter's record must be filed when the trial court has certified the defendant has no right to appeal, see Tex. R. App. P. 25.2, is a question probably best broached to each individual court of appeals.

However, the time tables in the Texas Rules of Appellate Procedure do not differentiate between cases in which the trial court has certified the defendant has the right to appeal and cases in which the trial court has certified the defendant has no right to appeal. See Tex. R. App. P. 35.2 (time for filing appellate record).

Additionally, individual appellate courts might prefer, as a matter of course, to have part or all of the official record on file prior to determing whether to dismiss a case based on the trial court's certification. See, e.g., Eschochea v. State, No. 13-01-761-CR, slip op. at 3, 2004 WL 1353408, at *2 (Tex. App.--Corpus Christi June 17, 2004, no pet. h.) (appellate court conducts independent review of record in Anders case to determine accuracy of certification); and Harris v. State, No. 10-03-00258-CR, slip op. at 1-2, 2004 WL 1109889, at *1 (Tex. App.--Waco May 12, 2004) (order abating appeal when record did not support trial court's certification of no right to appeal). But contrast Hynson v. State, No. 05-03-00085-CR, slip op. at 1-2, 2003 WL 1849186, at *1 (Tex. App.--Dallas May 1, 2003, no pet.) (not designated for publication) (taking 25.2 certification at face value and dismissing appeal without providing appellant opportunity to seek amended certification).

Andy

[Caveat: The opinions expressed by the author are his alone and do not necessarily represent the views of any elected judicial officials.]

Thanks.

The issue you raise is a good one. I've just finished an article for the next Sentencing Tips column in The Prosecutor that touches on the insanity connected to the supposed limited right to appeal that comes from an agreed punishment. I would be curious to hear how your courts of appeals are handling this issue.

In addition, here is another question I'd like to get some feedback on: if your defendant waives the right to appeal and then files a notice of appeal, does your court of appeals wait for a record and brief before ruling?

John Bradley
District Attorney
Williamson County, Texas