                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                      ORDER OF ABATEMENT

Appellate case name:       Lauro Mario Gomez-Arroyo v. The State of Texas

Appellate case number:     01-12-00280-CR

Trial court case number: 1330622

Trial court:               180th District Court of Harris County, Texas

        On December 19, 2011, appellant Lauro Mario Gomez-Arroyo pleaded guilty to the
felony charge of possession of a controlled substance. The trial court found appellant guilty, and
in accordance with the terms of appellant’s plea agreement with the State, sentenced appellant to
confinement in the Harris County Jail for six months. The trial court entered a certification of
defendant’s right to appeal as required by Texas Rule of Appellate Procedure 25.2(a)(2),
certifying that this is a plea-bargain case, and the appellant has no right of appeal.
        On January 18, 2012, appellant timely filed a motion for new trial. The motion for new
trial was denied on February 10, 2012. The denial of a motion for new trial is not an appealable
order, and therefore the trial court was not required to enter a certification with respect to the
order denying the motion for new trial. See TEX. R. APP. P. 25.2(a)(2) (the trial court shall
complete a certification each time a judgment or other appealable order is entered); Estrada v.
State, 149 S.W.3d 280, 284 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (denial of motion
for new trial is not an appealable order).
       However, the trial court entered a certification with respect to the denial of the motion for
new trial, certifying that this is not a plea-bargain case, and the appellant has the right of appeal.
Appellant filed a notice of appeal from the denial of the motion for new trial on March 7, 2012.
The certification entered by the trial court with respect to the denial of the motion for new trial is
not supported by the record, because the record indicates that this case is a plea-bargain case.
        Rule 25.2(a)(2) limits the right to appeal in a plea bargain case to those matters that were
raised by a written motion filed and ruled on before trial or those matters for which the trial court
has given permission to appeal. See TEX. R. APP. P. 25.2(a)(2). There is no evidence in the
record that the trial court granted the appellant permission to appeal the denial of the motion for
new trial. Unless the trial court granted appellant permission to appeal the denial of the motion
for new trial, the denial of the motion for new trial is not appealable. See Estrada, 149 S.W.3d at
284.
        We therefore abate this appeal and remove it from this Court’s active docket. We direct
the trial court to immediately conduct a hearing at which a representative of the Harris County
District Attorney’s Office and appellant’s counsel Franklin Bynum shall be present. Appellant
shall also be present for the hearing in person or, if appellant is incarcerated, at the trial court’s
discretion, appellant may participate in the hearing by closed-circuit video teleconferencing. 1
        The trial court shall have a court reporter record the hearing. The trial court is directed to
make written findings regarding whether the trial court previously granted or did not grant
appellant permission to appeal the denial of the motion for new trial. These written findings
must be contained in a separate written order, and not a docket sheet entry. If a revised
certification reflecting that the trial court granted permission to appeal is appropriate, the trial
court shall enter a revised certification, signed by the trial court judge, the appellant’s attorney,
and appellant. If no revised certification is needed because the trial court judge did not grant
permission to appeal the denial of the motion for new trial, written findings from the trial court
that no permission to appeal was granted shall be sufficient.
        The written findings of the trial court, and an amended certification if appropriate, shall
be included in a supplemental clerk’s record and sent to this Court within 30 days of the date of
this order. The reporter’s record of the abatement hearing shall likewise be sent to this Court
within 30 days of the date of this order.
        The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record and reporter’s record of the abatement hearing are filed in this Court. The court
coordinator of the trial court shall set a hearing date and notify the parties of such date.
       It is so ORDERED.

Judge’s signature:/s/ Justice Rebeca Huddle
                    Acting individually  Acting for the Court


Date: August 20, 2012




1      Any such teleconference must use a closed-circuit video teleconferencing system that provides
       for a simultaneous compressed full motion video and interactive communication of image and
       sound between the trial court, appellant, and any attorneys representing the State or appellant. On
       request of appellant, appellant and his counsel shall be able to communicate privately without
       being recorded or heard by the trial court or the attorney representing the State.
