TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00736-CR
David Anthony Lockett, Appellant
v.
The State of Texas, Appellee
FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
NO. CR28,082, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING
ORDER AND MEMORANDUM OPINION
PER CURIAM
Appellant David Anthony Lockett seeks to appeal from the trial court’s restitution
order. Lockett pleaded guilty to assault on a peace officer and, pursuant to a plea agreement, was
sentenced to eight years’ confinement. See Tex. Penal Code § 22.01(a)(1), (b-1). At a
subsequent hearing, provided for in the agreement, he was ordered by the trial court to pay
$2,809.10 in restitution.
The rules of appellate procedure require a trial court’s certification of the
defendant’s right to appeal “each time it enters a judgment of guilt or other appealable order.”
See Tex. R. App. P. 25.2(a)(2). When 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 which 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.
On March 23, 2023, the trial court certified that (1) this is a plea-bargain case and
Lockett has no right of appeal, and (2) Lockett has waived the right of appeal. See Tex. R. App.
P. 25.2(a)(2). However, on October 30, 2023—following the restitution hearing—the court
granted Lockett’s motion for permission to appeal the judgment of restitution. See id. (providing
that defendant in plea-bargain case may appeal after getting trial court’s permission).
Given the apparent discrepancy between the certification and the record, we abate
this appeal and remand the cause to the trial court for entry of a corrected certification addressing
Lockett’s right to appeal from the restitution judgment. See id. 34.5(c); 37.1; Dears, 154 S.W.3d
at 614 (stating that appellate courts have authority under Rules of Appellate Procedure “to obtain
another certification, whenever appropriate”). The district court clerk is instructed to file with
this Court a supplemental clerk’s record containing that corrected certification no later than
January 22, 2024.
Before Chief Justice Byrne, Justices Smith and Theofanis
Abated and Remanded
Filed: January 5, 2024
Do Not Publish
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