CCA Tells CA Not to Dismiss Case, but to Make the Trial Court Rule

Criminal defendant Damien Hernandez Cortez  files a timely notice of appeal of his jury trial. The trial judge does not file the certification of Cortez's right to appeal. Here's what Texas Rule of Appellate Procedure 26.2(a)(2) has to say about these certificates:

The trial court shall enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order.  In a plea bargain case — that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only:

(A)    those matters that were raised by a written motion filed and ruled on before trial, or

(B)    after getting the trial court’s permission to appeal.

Rule 26.2(d) says:

Certification of Defendant’s Right of Appeal.

If the defendant is the appellant, the record must include the trial court’s certification of the defendant’s right of appeal under Rule 25.2(a)(2).  The certification shall include a notice that the defendant has been informed of his rights concerning an appeal, as well as any right to file a pro se petition for discretionary review.  This notification shall be signed by the defendant, with a copy given to him.  The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under  Rule 34.5(c)(2).  The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.

This certification has a number of purposes. One of them is that it lets the appeals court know whether or not the trial judge thinks that the defendant has a right to appeal. Lots of defendants who plead guilty do so in plea bargains. (This is the main way criminal cases are disposed of.). One of the main things that the State gets out of a plea bargain is that the defendant agrees not to appeal. The form quickly notifies everybody whether or not a case is intended to be a no-appeal plea bargain.
A jury trial conviction, though, is exactly the kind of case that may be appealed, and is exactly the kind of case Cortez has. It would be apparent from the clerk's record of the papers in the case or the court reporter's or recorder's record that a case is a trial case. When the appellate court learned that the certification was missing, it notified the trial court and district clerk that this was the case, but still nothing came. Cortez's court of appeals felt it had to dismiss the case-- the last sentence of 26.2(d) says that a case without a certification must be dismissed-- even though it ends up punishing the defendant who lost at trial for the failing of the trial court judge. It advised the defendant that a timely motion for rehearing after supplementation of the record with the certification would revive the appeal. Still, there was no supplementation by the time the motion for rehearing was filed. There's no record of what the lawyer for Cortez did or tried to do to get the certification from the trial judge, and it does not appear that the court of appeals ordered the trial court to make the certification under 34.5(c)(2). The chief justice and one justice of the court of appeals refused the rehearing. Reading between the lines, they appear disgusted at the rule's requirement of dismissal and signal the defendant to take the case up to the Court of Criminal Appeals (What would have happened if his trial counsel was appointed and wouldn't have taken up the case without assurance of payment since counties generally pay for appeals but not for petitions for discretionary review? Cortez would have been out of luck.). The other justice-- Patrick A. Pirtle, may his tribe increase-- noticed that Texas Rule of Appellate Procedure 2 allowed courts of appeal to suspend many of the appellate procedure rules-- including 26.2(d)-- in order to expedite a decision or for other good cause. He said that suspending this rule in this case made good sense since it was obvious from the rest of the record that Cortez had a right to appeal.
When the Court of Criminal Appeals got the case, Judge Johnson wrote a case for a unanimous court (Even Presiding Judge Keller agreed!) saying that if the trial court did not produce and sign the certification after a request by the defendant and a request by the court of appeals, the court of appeals should order the judge to produce and sign a certification-- that's Rule 34.5(c)(2)-- which would take care of the matter unless the trial judge were dead, incapacitated, or had disappeared, etc. In situations like that, the rule should be waived, especially where the rest of the record clearly shows that the case was appealable.
Damien Hernandez Cortez v. State of Texas, No. PD-1349-12 (Tex. Crim. App. Sept. 18, 2013)