TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING
Jimmy Duran Lopez, Appellant
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-10-0192, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
On December 2, 2010, we dismissed this appeal for want of jurisdiction based on the
trial court’s certification that (1) this is a plea bargain case and appellant Jimmy Duran Lopez has
no right of appeal, and (2) Lopez waived the right to appeal. See Tex. R. App. P. 25.2(a)(2), (d).
Lopez has since filed a motion for rehearing, asserting that the trial court’s certification is inaccurate
because Lopez entered an open plea of guilt, rather than a plea bargain. The State then filed a
response to the motion for rehearing, asserting that the trial court’s certification was accurate to the
extent it indicated that Lopez waived the right of appeal.
In his motion for rehearing, Lopez takes the position that this Court dismissed the
appeal “prematurely” because the appellate record had not yet been filed. The court of criminal
appeals has recognized that a court of appeals may dismiss an appeal based on a trial court’s
certification before the record is filed. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App.
2005). Lopez further contends that this Court should have given him an opportunity to “correct the
error,” citing Dears. 154 S.W.3d 610. However, the court of criminal appeals did not hold in Dears
that courts of appeals are required to give an appellant the opportunity to remedy any inaccuracies
in the trial court’s certification before dismissing the appeal. Rather, the court observed that a trial
court’s certification may be examined by the court of appeals either before or after the appellate
record is filed, and held that if the court of appeals “chooses to examine a certification after the
record is filed,” then it has a duty to “compare the certification to the record” and act to remedy any
defects. Id. at 615. On the other hand, if a court of appeals “chooses to examine a certification
before the record is filed,” as this Court did in the present case, “it obviously cannot compare the
certification to the record.” Id. at 614-15.
However, it now appears that the trial court’s certification was in error, at least to the
extent that it indicated that Lopez lacked the right of appeal due to the existence of a plea-bargain.
We note also that despite its certification that Lopez had no right to appeal, the trial court later
appointed appellate counsel to represent Lopez. We therefore remand to allow the trial court to
revisit its certification of Lopez’s right to appeal. We grant the motion for rehearing, withdraw our
opinion and judgment dated December 2, 2010, and abate this appeal to allow the trial court to
recertify Lopez’s right to appeal, so that any errors may be rectified. A supplemental record
containing the trial court’s certification of Lopez’s right to appeal shall be forwarded to the Clerk
of this Court no later than May 13, 2011.
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Puryear and Henson
Filed: April 13, 2011
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