      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                ON MOTION FOR REHEARING



                                        NO. 03-10-00681-CR



                                  Jimmy Duran Lopez, Appellant

                                                    v.

                                    The State of Texas, Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-10-0192, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                              MEMORANDUM OPINION


                On December 2, 2010, we dismissed this appeal for want of jurisdiction based on the

trial court’s certification that (1) this is a plea bargain case and appellant Jimmy Duran Lopez has

no right of appeal, and (2) Lopez waived the right to appeal. See Tex. R. App. P. 25.2(a)(2), (d).

Lopez has since filed a motion for rehearing, asserting that the trial court’s certification is inaccurate

because Lopez entered an open plea of guilt, rather than a plea bargain. The State then filed a

response to the motion for rehearing, asserting that the trial court’s certification was accurate to the

extent it indicated that Lopez waived the right of appeal.

                In his motion for rehearing, Lopez takes the position that this Court dismissed the

appeal “prematurely” because the appellate record had not yet been filed. The court of criminal

appeals has recognized that a court of appeals may dismiss an appeal based on a trial court’s
certification before the record is filed. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App.

2005). Lopez further contends that this Court should have given him an opportunity to “correct the

error,” citing Dears. 154 S.W.3d 610. However, the court of criminal appeals did not hold in Dears

that courts of appeals are required to give an appellant the opportunity to remedy any inaccuracies

in the trial court’s certification before dismissing the appeal. Rather, the court observed that a trial

court’s certification may be examined by the court of appeals either before or after the appellate

record is filed, and held that if the court of appeals “chooses to examine a certification after the

record is filed,” then it has a duty to “compare the certification to the record” and act to remedy any

defects. Id. at 615. On the other hand, if a court of appeals “chooses to examine a certification

before the record is filed,” as this Court did in the present case, “it obviously cannot compare the

certification to the record.” Id. at 614-15.

                However, it now appears that the trial court’s certification was in error, at least to the

extent that it indicated that Lopez lacked the right of appeal due to the existence of a plea-bargain.

We note also that despite its certification that Lopez had no right to appeal, the trial court later

appointed appellate counsel to represent Lopez. We therefore remand to allow the trial court to

revisit its certification of Lopez’s right to appeal. We grant the motion for rehearing, withdraw our

opinion and judgment dated December 2, 2010, and abate this appeal to allow the trial court to

recertify Lopez’s right to appeal, so that any errors may be rectified. A supplemental record

containing the trial court’s certification of Lopez’s right to appeal shall be forwarded to the Clerk

of this Court no later than May 13, 2011.




                                                    2
                                           ___________________________________________

                                           Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Abated

Filed: April 13, 2011

Do Not Publish




                                              3
