      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00062-CR



                                     Ex parte Jolando King


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 450TH JUDICIAL DISTRICT
        NO. D-1-DC-16-201710, HONORABLE BRAD URRUTIA, JUDGE PRESIDING



                 ORDER AND MEMORANDUM OPINION


PER CURIAM

               Jolando King was charged with the felony offense of driving while intoxicated

with two prior convictions for driving while intoxicated. See Tex. Penal Code §§ 49.04 (setting out

elements of offense of driving while intoxicated), .09(b) (providing that offense is third-degree

felony if defendant “has previously been convicted . . . two times of any offense relating to the

operation of a motor vehicle while intoxicated”). Under the terms of a plea-bargain agreement, King

agreed to enter a plea of guilty in exchange for a reduced sentence. After accepting King’s guilty

plea, the district court assessed King’s punishment at five years’ imprisonment but elected to place

King on community supervision for three years. See id. § 12.34 (listing permissible punishment

range for third-degree felony). Following his conviction, King filed an application for writ of

habeas corpus challenging his conviction. See Tex. Code Crim. Proc. art. 11.072 (establishing

“the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in

which the applicant seeks relief from an order or a judgment of conviction ordering community
supervision”). After reviewing the application, the district court denied King’s application for

writ of habeas corpus. The order denying the requested relief provided as follows: “After careful

consideration, the application is DENIED.” In a single issue on appeal, King challenges the district

court’s ruling on his habeas application.


                                            DISCUSSION

               On appeal, King asserts that the district “court erred in denying” his application for

writ of habeas corpus without “making a recitation that the application was frivolous” or “entering

findings of fact and conclusions of law” as required by article 11.072 of the Code of Criminal

Procedure. That provision states in relevant part as follows: “If the court determines from the face

of an application or documents attached to the application that the applicant is manifestly entitled

to no relief, the court shall enter a written order denying the application as frivolous. In any other

case, the court shall enter a written order including findings of fact and conclusions of law.” Tex.

Code Crim. Proc. art. 11.072, § 7(a). In light of this statutory provision, King asserts that when the

district court denied his habeas application, it had the options of issuing an order expressly stating

that his requested relief was “frivolous” or issuing an order denying his requested relief and

including the statutorily required findings and conclusions. However, King observes that the

district court’s order denying his habeas application did not state that his requested relief was

frivolous or contain any findings or conclusions. Accordingly, King contends that this Court should

reverse the district court’s order and remand for further proceedings.

               In its appellee’s brief, the State argues that this Court should not address the alleged

error because King failed to preserve his complaint for appellate consideration. See Tex. R. App.

                                                  2
P. 33.1 (setting out requirements for preserving “a complaint for appellate review”). As support for

this argument, the State refers to an opinion issued by the court of criminal appeals. See State v.

Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). In Terrazas, the trial court suppressed a statement

made by the defendant to a police officer after concluding that the statement was involuntarily

made, and the State appealed that order. Id. at 721. When making its determination after convening

a suppression hearing, the trial court made no findings of fact or conclusions of law. Id. at 725.

While “[v]iewing the evidence in the light most favorable to the trial court’s ruling,” the court of

criminal appeals determined that “the trial court’s legal ruling on the voluntariness issue was

erroneous” because the testimony “did not raise a voluntariness question.” Id. at 726, 727.

                After reaching this conclusion, the court of criminal appeals addressed an argument

regarding whether the case should have been remanded to allow the trial court to issue “findings of

fact and conclusions of law.” Id. at 727. Further, the court referred to section six of article 38.22

of the Code of Criminal Procedure, id., which states that if a trial court determines that a statement

was voluntarily made, the trial court must issue “specific finding of facts upon which the conclusion

was based,” Tex. Code Crim. Proc. art. 38.22, § 6. Moreover, the court of criminal appeals explained

that because “the trial court in this case decided appellee’s statement was involuntary, then it was

not required to ‘enter an order’ containing its findings of fact and conclusions of law” under section

six. Terrazas, 4 S.W.3d at 728. Finally, the court reasoned that even if section six applied, it was

“not inclined to exercise [its] discretion to remand this case sua sponte to the trial court for findings

of fact and conclusions of law” where “[n]either party has complained about the absence of findings

and conclusions” and observed that the right “to findings and conclusions is a statutory ‘right’ which

is forfeited by a party’s failure to insist upon its implementation.” Id. Based on the last comment

                                                   3
by the court of criminal appeals set out above, the State contends that a similar rule should be applied

to errors arising under article 11.072 and that, therefore, King should not be allowed to challenge

the district court’s order because King failed to insist that the district court provide findings and

conclusions or specify that his requested habeas relief was frivolous.

                We believe that the State’s reliance on the statement from Terrazas is misplaced for

several reasons. First, prior to making the statement at issue, the court had already determined that

section six did not apply to the facts of that case, and the court was not presented with a situation in

which a party was asserting that the trial court erred by failing to make required findings and

conclusions. Accordingly, the statement by the court of criminal appeals would seem to be dicta.

See Aguirre-Mata v. State, 125 S.W.3d 473, 476 (Tex. Crim. App. 2003) (explaining that dicta has

no binding effect). More importantly, in a subsequent case, the court of criminal appeals expressly

determined that section six “requires the trial court to make written fact findings and conclusions of

law as to whether the challenged statement was made voluntarily” and that the language of the rule

is mandatory and requires compliance regardless of whether the defendant objects to the omission

of the required findings and conclusions. See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App.

2004). Further, the court concluded that because “the trial court did not issue the requisite written

findings of fact and conclusions of law,” the case should be remanded to the trial court with

instructions that the trial court comply with the provisions of section six. See id. For these reasons,

we do not believe that the comment made by the court of criminal appeals in Terrazas compels a

conclusion that King may not challenge the district court’s order in this case for failing to comply

with article 11.072.



                                                   4
               Additionally, numerous courts of appeals, including this one, have determined that

a trial court’s failure to comply with the mandatory language in section seven of article 11.072 by

either not specifying in an order that a habeas application was frivolous or not issuing findings and

conclusions supporting a denial of a request for habeas relief requires corrective action on appeal.

See, e.g., Hernandez-Prado v. State, Nos. 03-15-00289—00290-CR, 2015 WL 5919965, at *1 (Tex.

App.—Austin Oct. 7, 2015, order) (per curiam); Ex parte Baldez, 510 S.W.3d 477, 479 (Tex.

App.—San Antonio 2014, no pet.); Ex parte Jones, 367 S.W.3d 696, 697 (Tex. App.—Texarkana

2012, no pet.); Ex parte Enriquez, 227 S.W.3d 779, 784 (Tex. App.—El Paso 2005, pet. ref’d).

               In light of the mandatory language of section seven and in light of the prior

determination by the court of criminal appeals in Urias that claims similar to the one presented

here but under a different statute may be brought on appeal regardless of whether the claims were

presented to a trial court, we conclude that King’s appellate issue is properly before this Court.

               Having reviewed the district court’s order denying King’s habeas relief and the

governing statutory provision, we agree with King that the order does not comply with the mandatory

requirements of section seven of article 11.072, but we disagree with King regarding the appropriate

remedy. As set out above, King contends that the district court’s order should be reversed and that

the case should be remanded for further proceedings. Although King correctly points out that some

appellate courts have reversed a trial court’s ruling and remanded the case if the requirements of

section seven were not met, see Ex parte Garcia, No. 13-16-00462-CR, 2018 WL 1545505, at *2-3

(Tex. App.—Corpus Christi Mar. 29, 2018, no pet.) (mem. op., not designated for publication);

Ex parte Garcia, No. 13-14-00501-CR, 2016 WL 454997, at *3 (Tex. App.—Corpus Christi Feb. 4,



                                                 5
2016, no pet.) (mem. op., not designated for publication); Ex parte Jones, 367 S.W.3d at 697;

Ex parte Garcia, No. 14-10-00978-CR, 2012 WL 760907, at *2 (Tex. App.—Houston [14th Dist.]

Mar. 8, 2012, no pet.) (mem. op., not designated for publication), several appellate courts presented

with that issue, including this Court, have determined that the case should be abated instead, see

Ex parte Blanco, No. 01-17-00383-CR (Tex. App.—Houston [1st Dist.] July 25, 2017, order);

Hernandez-Prado, 2015 WL 5919965, at *1; Ex parte Rojas, No. 14-14-00781-CR (Tex.

App.—Houston [14th Dist.] Jan. 22, 2015, order) (per curiam); Ex parte Vasquez, No. 01-14-00613-

CR (Tex. App.—Houston [1st Dist.] Oct. 2, 2014, order); Ex parte Baldez, 510 S.W.3d at 479;

Ex parte Enriquez, 227 S.W.3d at 784.

                Moreover, Rule of Appellate Procedure 44.4 explains that appellate courts may not

affirm or reverse a trial court’s judgment if “the trial court’s erroneous action or failure or refusal

to act prevents the proper presentation of a case to the court of appeals” and if “the trial court can

correct its action or failure to act” and further instructs that in those circumstances appellate courts

should, instead, “direct the trial court to correct the error.” Tex. R. App. P. 44.4; see also State v.

Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006) (explaining that “Rule 44.4 authorizes the

court of appeals to remand the case to the trial court” for entry of findings of fact and conclusions

of law “so that the court of appeals is not forced to infer facts from an unexplained ruling”).

                In light of the guidance from Rule 44.4 and in light of the manner in which this Court

has addressed this issue previously, we believe that the better practice in this case is to abate this

appeal. Accordingly, we abate this appeal to allow the district court to clarify its December 12, 2017

order in a manner that is consistent with section seven of article 11.072. See Tex. Code Crim.



                                                   6
Proc. art. 11.072, § 7. The district court shall issue an order complying with section seven and, if

warranted, enter findings of fact and conclusions of law supporting the order and shall arrange for

the filing of a supplemental clerk’s record containing the order and any findings and conclusions

made by the district court no later than September 14, 2018. Further, the parties are ordered to file

with this Court supplemental appellate briefing regarding the propriety of the district court’s order

and, if any are entered, of the district court’s findings and conclusions. See Tex. R. App. P. 38.7

(authorizing appellate court to request supplemental briefing “whenever justice requires” and “on

whatever reasonable terms the court may prescribe”). The supplemental appellant’s brief will be

due on or before October 15, 2018, and the supplemental appellee’s brief will be due on or before

the thirtieth day after the supplemental appellant’s brief has been filed.

                In addition, we observe that there may be an error in the district court’s certification

of King’s right to appeal. 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 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 Tex. R. App. P. 34.5(c), 37.1.

                In its certification, the district court checked the box indicating that this “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.” Although the record reflects that

King entered into a plea-bargain agreement regarding the underlying offense of driving while

intoxicated, the appeal at issue here concerns the district court’s denial of King’s habeas application,



                                                   7
and “an order denying an application for writ of habeas corpus arising from a community-supervision

case is an appealable order.” See Ex parte Saylee, No. 03-18-00124-CR, 2018 WL 1833533, at *1

(Tex. App.—Austin Apr. 17, 2018, order) (per curiam). Under the Rules of Appellate Procedure,

a trial court is required 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). When previously confronted

with a similar certification in a habeas appeal, this Court explained that a certification of the right

to appeal a post-conviction habeas ruling stating that the case was a plea-bargain case and that the

individual had no right to appeal was defective even though a plea-bargain agreement was entered

during the trial of the underlying offense because the appeal at issue was the denial of habeas relief

under an appealable order issued after the conviction. See Ex parte Saylee, 2018 WL 1833533,

at *1; see also Ex parte Tarango, 116 S.W.3d 201, 203 (Tex. App.—El Paso 2003, no pet.)

(determining that certification requirement applies to orders “denying habeas corpus relief” ).

                Based on the record before this Court, it appears that the district court’s certification

of King’s right to appeal signed January 29, 2018, may be incorrect. Therefore, we abate the appeal

and remand the case to the district court to either issue a new certification or issue findings of fact

and conclusions of law explaining how this appeal constitutes an appeal of a plea-bargain case and

what matters presented in the habeas application were ruled on before trial but not waived or

withdrawn. See Tex. R. App. P. 37.1; Dears, 154 S.W.3d at 614-15. The amended certification or

the findings and conclusions should be included in the supplemental clerk’s record discussed above.

                It is so ordered on August 14, 2018.




                                                     8
Before Justices Puryear, Pemberton, and Bourland

Abated and Remanded

Filed: August 14, 2018

Do Not Publish




                                             9
