While sporadically reading opinions from other courts of appeal on this issue, I've reached one conclusion: All the appellate courts seem to be following their own paths. (Surprise, surprise, surprise...)

Some, such as Dallas, seem to dismiss outright.

Others, such as Waco, seem to prefer abating the case if they think the certification is in error.

Some, such as Texarkana, review the clerk's record prior to filing to see if there might be a certification problem. If so, the Court sends a warning letter to allow the appellant an opportunity to cure the defect, if any.

Still others might wait until both the parties have briefed the issue.

Why do all the courts do it differently? First, the CCA hasn't explicitly endorsed or cursed any particular method of handling the situation. Second, each court has probably determined that its particular method best uses its scarce judicial resources. (For example, in larger courts like Houston and Dallas, I doubt the deputy clerks have time to send out nice little warning letters in all their criminal cases.)

Apparently, the Ninth Court places an immediate burden on the Appellant to say what the record might show, if filed. If no explanation (or amended certificate) is timely offered, then no need to await filing even of the Clerk's Record. Jones, No. 09-04-280-CR (08/12/04)(not designated for publication) Jones

Does the last sentence of Rule 25.2(d) mean that an appeal must be dismissed if a certification that shows the defendant has the right of appeal is not made a part of record? Not if the appeal concerns historical rights of appeal not enumerated in the rule or in the promulgated form. If it did it would represent a substantive modification of the appellant's rights contrary to the authority given the court of criminal appeals in Sec. 22.108(a) of the Government Code. Chavez, 139 S.W.3d at 48. Never mind that the language seems only to specify how an appeal may be taken and is phrased in mandatory terminology. I guess, if nothing else, the certificate form now needs amendment to cover all the bases or possible rights of appeal. Does anyone know if the CCA is even considering any amendments to this rule? The sooner they act the better off we will all be (though I admit it is far more of a problem for the appellant's counsel and the courts than for the appellee). But I guess the CCA does not want to admit it made a mistake.

Something needs to change. My district clerk is required to file the clerk's record even when there is a plea bargain and a certification of no right to appeal is on file.

Perhaps the defendant could be rquired to file a notice of appeal with the court of appeals along with a proper certification. If so, the court of appeals could direct the district clerk to prepare the clerk's record. If not, the court could dismiss the appeal.

Not only does the Defendant get a record, but if he asks he will get an appointed attorney- despite the fact that the certificate says there is no issue to be appealed. Go figure. Rodriguez
But, if counsel then confirms there is no right of appeal, the appeal is dismissed. Rodriguez II

[This message was edited by Martin Peterson on 06-13-05 at .]

Then again, the appeals of Mr. Richardson were dismissed two days after Rodriguez without the full record being filed.Richardson Is a rule really useful when it is subject to so many interpretations or disparate applications?

It has gotten so bad now that even the judges on the same court don't know how to handle the problem! Martinez

[This message was edited by Martin Peterson on 09-23-05 at .]

Well, we finally have some authoritative discussion of this topic. "The purpose of the certification requirement is to efficiently sort appealable cases from non-appealable cases. Certification allows appealable cases to move through the system unhindered while eliminating, at an early stage, the time and expense associated with non-appealable cases. When appeal is barred by Texas Rule of Appellate Procedure 25.2(a)(2), the clerk's and court reporter's records need not be prepared, counsel need not be appointed, and briefs need not be filed. On the other hand, if there is something in whatever record does exist that indicates that an appellant has the right to appeal, the court of appeals must determine whether the certification is deficient and resolve the conflict." and "While an appellate court may require a trial court to certify whether there is a right to appeal, the appellate court may not dictate the content of the certification." Greenwell, No. AP-75,017 (CCA, 02/09/05). Looks like several intermediate courts have gotten it wrong.

On March 2, the CCA finally acted on the State's PDR in Daniels- it was refused. So, the question remains unanswered by the people with the answer. It appears the only way the issue will reach the CCA is if the CofA determines the merits of a case in favor of a defendant, when no proper certificate is timely filed, and the State challenges the jurisdiction of the intermediate court.

[This message was edited by Martin Peterson on 03-03-05 at .]

I was wrong. The court granted review of many of the issues on its own motion in Chavez, No. PD-1381-04. Maybe more answers are on the way.

The Third Court of Appeals came up with another innovation- the "deemed amendment" to the certification. Chandler, 165 S.W.3d at 66 fn. 1.

Just wait and we will have even another situation to decide. What if orig plea for def adjudication cert says no right to appeal, then after defendant was adjudicated court signs an order stating it was not a plea-barg case and def has right to appeal. (Claims involuntary plea) We will see what the 11th COA will do on this case.

The certificate will likely not be the determining factor in your case, since the issue raised is not subject to appellate review in any event. E.g., Few, 136 S.W.3d at 712-3. But your situation does represent the limited utility of the certificate.

Yes I argued that, but wish I had used Few - it has a much better explanation than the case I used. It is complicated by the fact the trial court held a hearing on a motion for new trial on "recently discovered information" that allegedly made his plea involuntary. The trial court denied the MNT but I understand that the trial court actually wanted to give permission to appeal, just failed to properly do so. I guess I got sidetracked by trying to apply the arguments I used in Whitfield, 111 SW3d 786 regarding whether a MNT preserves voluntariness for appellate review.