Ex Parte Leslie Palomo ( 2022 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
FIRST ORDER OF ABATEMENT
Appellate case name: Ex parte Leslie Palomo
Appellate case number: 01-21-00707-CR
Trial court case number: CV-0088967
Trial court: County Court at Law No. 2 of Galveston County
Appellant, Leslie Palomo, timely filed a notice of appeal of the trial court’s November
16, 2021 order denying her post-conviction application for writ of habeas corpus. See TEX. R.
APP. P. 31.
On July 12, 2022, we directed the trial court to supplement the clerk’s record with a
certification of appellant’s right to appeal that complies with Texas Rule of Appellate Procedure
25.2(d) and indicates whether appellant had the right to appeal from the trial court’s order
denying her application. See TEX. R. APP. P. 25.2(a)(2), (d), 37.1.
On July 21, 2022, a supplemental clerk’s record was filed that included the trial court’s
signed order denying the habeas application. The supplemental clerk’s record did not include a
certification of appellant’s right to appeal the trial court’s order denying appellant’s application
for writ of habeas corpus. The county clerk informed this Court that this case “does not contain a
signed certification of the appellant’s right of appeal from the order denying appellant’s habeas
application,” explaining that “the case is a civil matter.”
The habeas corpus proceeding brought by Palomo under the Code of Criminal Procedure
is a criminal proceeding, not civil. Ex parte Tarango, 116 S.W.3d 201, 202 (Tex. App.—El Paso
2003, no pet.); Ex parte Rieck, 144 S.W.3d 510, 516 (Tex. Crim. App. 2004); Fowler v. State,
No. 01–12–00300–CR, 2013 WL 653276, at *1 (Tex. App.—Houston [1st Dist.] Feb. 21, 2013,
no pet.) (mem. op.). Article 11.09 of the Code of Criminal Procedure authorizes writs of habeas
corpus in misdemeanor cases. See TEX. CODE CRIM. PROC. art. 11.09.
The Rules of Appellate Procedure require the trial court to enter a certification of the
defendant’s right of appeal “each time it enters a judgment of guilt or other appealable order.”
TEX. R. APP. P. 25.2(a)(2). An order denying a post-conviction application for writ of habeas
corpus is an appealable order. Tarango, 116 S.W.3d at 203.
Accordingly, we abate the appeal, and the trial court is directed to prepare and file its
certification of appellant’s right of appeal from the order denying appellant’s application for writ
of habeas corpus as required by the Texas Rules of Appellate Procedure. See TEX. R. APP. P.
25.2(a)(2), 44.4.
The trial court clerk is directed to file a supplemental clerk’s record containing the
certification of appellant’s right of appeal from the order denying her application for writ of
habeas corpus with this Court no later than 20 days from the date of this order. See TEX. R.
APP. P. 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 the Rules of Appellate
Procedure. TEX. R. APP. P. 25.2(d). This order constitutes notice to all parties of the defect.
See TEX. R. APP. P. 37.1.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. It will be reinstated on this Court’s active docket when the supplemental clerk’s record is
filed with the Clerk of this Court.
It is so ORDERED.
Judge’s signature: _____/s/ Sarah Beth Landau __________________________________
Acting individually
Date: August 16, 2022
2