NUMBER 13-17-00452-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
JOHN DAVID SERNA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 370th District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Benavides
Appellant, John David Serna, has filed a notice of appeal with this Court from his
conviction in trial court cause number CR-3071-16-G for aggravated sexual assault of a
child. See TEX. PENAL CODE ANN. 22.021 (West, Westlaw through 2017 1st C.S.). The
trial court's certification of the defendant's right to appeal states that this “is a plea bargain
case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2).
On August 14, 2017, we ordered appellant's retained counsel to, within thirty days,
review the record and advise this Court as to whether appellant has a right to appeal.
See TEX. R. APP. P. 44.3, 44.4. Appellant’s counsel did not respond to this Court's order.
Therefore, we abated this appeal and remanded this cause to the trial court for a hearing
to determine why counsel failed to comply with this Court's order. We have received the
trial court’s findings and conclusions following abatement. Appellant’s retained counsel
informed the trial court that, inter alia, he had not filed his response yet because he wished
to review the appellate record before responding to our directive. In its findings and
conclusions, the trial judge stated that he “continues to believe that Defendant Serna does
not have a right to appeal this case.”
On October 12, 2017, appellant’s retained counsel informed this Court by phone
that he would file a response regarding whether appellant has a right to appeal by October
20, 2017. Nevertheless, counsel did not file the response. On October 26, 2017, the
Clerk of the Court requested that counsel inform the Court as to the status of the response
and notified him that the matter would be referred to the Court for appropriate orders if
the response was not filed within ten days. To date, appellant’s retained counsel has
still not filed a response regarding the accuracy of the trial court certification.
We have reviewed the documents before the Court, which include the judgment of
conviction, trial court’s certification, the appellant’s waiver of the right to appeal, and the
reporter’s record of the hearing wherein appellant pleaded guilty pursuant to a plea
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bargain. The record before the Court does not establish that the certification currently
on file with this Court is incorrect or that appellant otherwise has a right to appeal.
The Texas Rules of Appellate Procedure provide that an appeal must be dismissed
if the trial court’s certification does not show that the defendant has the right of appeal.
TEX. R. APP. P. 25.2(d); see TEX. R. APP. P. 37.1, 44.3, 44.4. Accordingly, this appeal is
DISMISSED.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of December, 2017.
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