James Douglas Harris v. State ( 2004 )

James Douglas Harris v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-03-00258-CR

     JAMES DOUGLAS HARRIS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 9718-A

DISSENTING OPINION

      I respectfully dissent from the Court’s Abatement Order for the following reasons.

      First, the order is not a mere abatement order. It is, rather, an order to the trial court to enter a certification of Appellant’s rights of appeal to the Court’s liking. We should not be in the business of ordering what the trial court should do, especially on the basis of the partial record before us.

      Next, Rule 25.2(d) ultimately governs our actions. See Tex. R. App. P. 25.2(d). Rule 25.2(d) is the most specific rule on the matter. See id. That rule provides, “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.” Id. We have followed that rule in the past. See Walker v. State, 110 S.W.3d 509, 511 (Tex. App.—Waco 2003, no pet.). The primary case on which the Court relies notes that, like this Court, four other courts of appeals take the certification at face value. See Stowe v. State, 124 S.W.3d 228, 232-33 (Tex. App.—El Paso 2003, op. on mot.) (citing Aguilar v. State, No. 14-03-00346-CR, 2003 WL 1922509, at *1 (Tex. App.—Houston [14th Dist.] Apr. 24, 2003, no pet.) (mem. op.); Hynson v. State, No. 05-03-00085-CR, 2003 WL 1995143, at *1 (Tex. App.—Dallas May 1, 2003, no pet.) (not designated for publication) (mem. op.); Harris v. State, No. 01-03-00114-CR, 2003 WL 1849186, at *1 (Tex. App.—Houston [1st Dist.] Apr. 10, 2003, no pet.) (not designated for publication) (mem. op.); Smith v. State, No. 11-03-00067-CR, 2003 WL 1393983, at *1 (Tex. App.—Eastland Mar. 20, 2003, no pet.) (not designated for publication)).

      Moreover, if, as the Court concludes, Appellant’s certification is defective, then the Court is governed by Rule 37.1. See Tex. R. App. P. 37.1. That rule provides, “If the appellate court clerk determines that the . . . certification of defendant’s right of appeal in a criminal case is defective, the clerk must notify the parties of the defect so that it can be remedied if possible.” Id. The Appellant then has thirty days after the notice to correct the defect. Id. Until Appellant has moved the trial court to amend its certification, no action on this Court’s part is ripe. Appellant’s brief does not consider the matter of our jurisdiction, and the State’s brief is not yet due. If the majority is bound and determined to overrule Walker, it should at least wait until the issue is raised.

      Lastly, I question, on the Court’s holding, why we should abate at all. If the Court has already determined, on the basis of a partial record and in the face of the trial court’s determination, that Appellant has the right of appeal, no purpose is served by abating for the trial court to certify the same to us.

      I do not join the Court’s determination to overrule Walker and hold that an appellant’s certification of his or her rights of appeal that facially does not comply with Rule 25.2 is merely “defective.” But if, as the Court concludes, Appellant’s certification is defective, then we must direct “the clerk [to] notify the parties of the defect, so that it can be remedied, if possible,” and, failing remedy, dismiss the appeal. See Tex. R. App. P. 25.2(d), 37.1. Because the majority does otherwise, I respectfully dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed May 12, 2004

Publish

[CR25]