Opinion
01-21-00707-CR
08-16-2022
Ex parte Leslie Palomo
County Court at Law No. 2 of Galveston County CV-0088967
FIRST ORDER OF ABATEMENT
Appellant, Leslie Palomo, timely filed a notice of appeal of the trial court's November 16, 2021 order denying her post-conviction application for writ of habeas corpus. See Tex. R. App. P. 31.
On July 12, 2022, we directed the trial court to supplement the clerk's record with a certification of appellant's right to appeal that complies with Texas Rule of Appellate Procedure 25.2(d) and indicates whether appellant had the right to appeal from the trial court's order denying her application. See Tex. R. App. P. 25.2(a)(2), (d), 37.1.
On July 21, 2022, a supplemental clerk's record was filed that included the trial court's signed order denying the habeas application. The supplemental clerk's record did not include a certification of appellant's right to appeal the trial court's order denying appellant's application for writ of habeas corpus. The county clerk informed this Court that this case "does not contain a signed certification of the appellant's right of appeal from the order denying appellant's habeas application," explaining that "the case is a civil matter."
The habeas corpus proceeding brought by Palomo under the Code of Criminal Procedure is a criminal proceeding, not civil. Ex parte Tarango, 116 S.W.3d 201, 202 (Tex. App.-El Paso 2003, no pet.); Ex parte Rieck, 144 S.W.3d 510, 516 (Tex. Crim. App. 2004); Fowler v. State, No. 01-12-00300-CR, 2013 WL 653276, at *1 (Tex. App.-Houston [1st Dist.] Feb. 21, 2013, no pet.) (mem. op.). Article 11.09 of the Code of Criminal Procedure authorizes writs of habeas corpus in misdemeanor cases. See Tex. Code Crim. Proc. art. 11.09.
The Rules of Appellate Procedure require the trial court 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). An order denying a post-conviction application for writ of habeas corpus is an appealable order. Tarango, 116 S.W.3d at 203.
Accordingly, we abate the appeal, and the trial court is directed to prepare and file its certification of appellant's right of appeal from the order denying appellant's application for writ of habeas corpus as required by the Texas Rules of Appellate Procedure. See Tex. R. App. P. 25.2(a)(2), 44.4.
The trial court clerk is directed to file a supplemental clerk's record containing the certification of appellant's right of appeal from the order denying her application for writ of habeas corpus with this Court no later than 20 days from the date of this order. See Tex. R. App. P. 34.5(c)(2).
"The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record" under the Rules of Appellate Procedure. Tex. R. App. P . 25.2(d). This order constitutes notice to all parties of the defect. See Tex. R. App. P. 37.1.
The appeal is abated, treated as a closed case, and removed from this Court's active docket. It will be reinstated on this Court's active docket when the supplemental clerk's record is filed with the Clerk of this Court.
It is so ORDERED.