Gibson Donald Lewis v. State

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      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00565-CR



                                 Gibson Donald Lewis, Appellant

                                                   v.

                                    The State of Texas, Appellee


             FROM THE COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY
                             NO. C-1-CR-09-211254
            HONORABLE CARLOS HUMBERTO BARRERA, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In August 2013, appellant pled guilty to misdemeanor driving while intoxicated

and was sentenced to four days in jail and a ninety-day suspension of his driver’s license. Before

entering into the plea agreement, appellant filed two motions to suppress the evidence from the

night of his arrest, both of which were denied. The record does not reflect that appellant waived or

withdrew his complaints related to the suppression of the evidence. The trial court’s certification

of his right to appeal states that this “is a plea-bargain case, and the defendant has NO right of

appeal,” however, rather than that it “is a plea-bargain case, but matters were raised by written

motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the

right of appeal.”

                In determining whether an appellant in a criminal case has the right to appeal, we

examine the trial court’s certification for defectiveness, defined as a certification that is “correct in
form but which, when compared to the record before the court, proves to be inaccurate.” Dears v.

State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). If the certification appears to be defective, we

must obtain a correct certification. Id. at 614-15; see also Tex. R. App. P. 34.5(c), 37.1.

               Based on this record, it appears that the trial court’s certification, signed October 9,

2013, is incorrect. Therefore, we abate the appeal and remand the case to the trial court either to

issue a new certification or to issue findings of fact and conclusions of law explaining how and

when appellant waived the complaints that he raised in his written, pretrial motions. See Dears,

154 S.W.3d at 614-15; Tex. R. App. P. 37.1. The trial court clerk is instructed to forward to this

Court a supplemental clerk’s record containing the amended certification or the findings and

conclusions no later than November 25, 2013.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Rose and Goodwin

Abated

Filed: October 29, 2013

Do Not Publish




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