### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00062- CR

Ex parte Jolando King

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 450 TH JUDICI AL DISTRICT NO. D-1 -DC- 16- 2017 10, H ONO RAB LE B RAD URRUTIA, JUDGE P RESIDING

O R D E R A N D M E M O R A N D U M O P I N I O N

P ER CURIAM

J olando King was ch ar ged with the felony offe nse of driving while intox icated with two prior convictions for driving while intox icated. See Tex. Penal Code §§ 49.04 (setting out el ements of offe nse of driving while intox icated) , .09(b) (providing that offe nse is third-de gre e felony if defe ndant “has previously b ee n co n v i ct ed

. . . two times of any offe nse rela ting to the opera tion of a motor vehicle while intox icated” ). Under the terms of a plea- barg ain ag ree ment, King ag ree d to enter a ple a o f g uilty in exchang e for a reduce d sentenc e. After acc epting King ’s guilty plea, the district court assessed King ’s punishment at five y ear s’ imprisonment but elec ted to place King on community supervisio n fo r three y ear s. See id. § 12.34 (listing permissible punishment rang e for third -d egr ee felony ). Following his conviction, King filed an application for writ of h abeas corpus challeng ing his conviction. See Tex. Code Crim. Proc. art. 11.072 (establ i s h i n g “the procedur es for an application for a wr i t o f h ab ea s corpus in a felony or m isdemeanor case in which the applicant seeks relief from an order or a judgme nt of co n v i ct i o n order ing communitysupervision”). After revie wing the application, the district court denied King ’s appli ca t ion for

writ of habeas co rp u s . T he order deny ing the reque sted relief provided as follows: “Af ter care ful consideration, the application is DENIED .” I n a single issue on appea l, King challeng es the district court’s r uling on his habe as applica tion.

DISCUSSIO N On appea l, K ing asser

ts that the district “cour

t e rre d in de ny ing” his a

pplication for writ of habea s corpus without “making a rec itation that the application was frivolous” or “ente ring finding s of fac t and con clus ions of law” as require d by article 11.072 of the Code of Criminal Procedur e. That provision states in rele vant part as follows: “I f the court deter mines from the fac e of an application or documents attached to the applica tion that the applicant is manifestly entitled to no relief, the court shall enter a wr itten order de ny ing the application as f rivolous. I n any

other

case , the cour

t shall enter a

written orde r including finding s of fa ct and c onclusions of law.” Tex. Code Crim. Proc. art. 11.072, § 7(a)

. I n light of this statutory provision, King asser ts that when the district c ourt denied his ha beas application, it ha d the options of issuing an or der e x pressly stating that his reque sted relief was “fr ivolous” or issuing an order deny ing his requ es t ed relief and including the statutorily require d finding s and conclusions. Howeve r, King observe s t h at t h e district court’s order deny ing his habea s application did not state that his reque sted relief was frivolous or contain any finding s or conclusions. Acc ording ly , King contends that this Court should

reve rse the district c ourt’s orde r and r emand f or fur ther proc eeding s. I n its appellee ’s brief, the State arg ues that this Court should not addre ss the alleg ed

err or bec ause King failed to prese rve his complaint for appellate consideration. See Tex. R. App.

2P. 33.1 (setting out require ments for prese rving “a complaint for appellate revie w”)

. As support for

this arg ument, the State ref ers to an opini o n issued by the court of criminal appea ls. See State v. Terrazas , 4 S.W .3d 720 (Tex. Crim. App. 1999). I n Terrazas , the trial court suppressed a statement made by the defe ndant to a police office r afte r concluding that the statement was involuntarily made, and the State appea led that order

. Id. at 721. When making its deter mination afte r convening

a suppression h ea ri n g, t h e trial court made no finding s of fac t or conclusions of law. Id. at 725. Whil e “[v] iewing the evi d en ce in the light most favor able to the trial court’s ruling ,” the court of criminal appea ls det er mined that “the trial court’s leg al ruling on the voluntariness issue was

err oneous” be cause the testimony “did not raise a

voluntariness question.” Id. at 726, 727. After rea ching this conclusion, the court of criminal appea ls addre ssed an arg ument reg arding whether the case should have been rema nded to allow the trial court to issue “finding s of fac t and conclusions of l aw.” Id. at 727. Fur ther, the c ourt ref

err ed to section si x of article 38.22 of the Code of Criminal Procedur e, id. , which states that if a trial court deter mines that a statement

was voluntarily made, the trial court must issue “spec ific finding of fac ts upon which the conclusion

w a s b a s e d , ” T e x. Co d e Cr im

. Pr o c . a r t. 3 8

. 2 2 , § 6

. M o r e o v e r , th e c o u r t o f c r im in a l a

p p e a ls e xp la in e d that beca use “the trial court in this case decided appellee ’s s tatement was involuntary , then i t was not require d to ‘ente r an order ’ containing its finding s of fac t and conclusions of law” under section six

. Terrazas , 4 S.W .3d at 728. Finally , the court rea soned that even if section six applied, it was “not inclined to exercise [i ts] discretion to rema nd this case sua sponte to the trial court for finding s of fac t and conclusions of law” wher e “[n] either party has complained about the absenc e of finding s and conclusions” and observe d that the rig ht “to finding s and conclusions is a statutory ‘rig ht’ which is forfe ited by

a par ty ’s fa ilure to insist upon its implementation.” Id. Ba sed on the last comment 3by the court of criminal appea ls set out above, the State contends that a simil ar rule should be applied

t o er ro rs arising under article 11.072 and that, there fore , King should not be allowed to challenge the district court’s order beca use King failed to insist that the district court provide finding s and conclusions or spec ify

that his requeste d habea s relief was fr ivolous. We believe that the State’s relianc e on the statement from Terrazas is misplaced for

sever al rea sons. First, prior to making the statement at issue, the court had alre ady deter mined that section six did not apply to the fac ts of that case , and the court was not prese nted with a situation in which a party was asser

ting that the trial court err ed by fa i l i n g t o make require d finding s and conclusions. Acc ording ly , the s tat em ent by the court of criminal appea ls 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 eff

ect)

. More importantly , in a subsequent case , the court of criminal appea ls expressly deter mined that section six “re quires the trial court to make written fac t finding s and conclusions of law as to whether the challeng ed statement was made voluntarily ” and that the lang uag e of the rule is mandatory and require s compliance reg ardle ss of whether the defe ndant objects to the omission of the require d finding s and conclusions. See Urias v. State , 155 S.W .3d 141, 142 (Tex. Crim. App. 2004). Fur

ther, the court conclude d that beca use “the trial court did not issue the requisite written finding s of fa ct an d co n cl usions of law,” the case should be rema nded to the trial court with instructions that the trial court comply with the provisions of section six

. See id. For these rea sons, we do not believe that the comment made by the court o f cr i m i n al ap p eals in Terrazas compels a conclusion that King may not challeng e the district cour t’s order in this case for failing to comply with article 11.072.

4Additionally , numerous cour ts of appea ls, inc luding this one, ha ve dete rmined that a trial court’s failure to comply with the m andator y lang uag e in sec tion seven of a rticle 11.072 by either not specify

ing in an order that a habea s application was frivolous or not issuing finding s and conclusions supporting a denia l of a re quest for ha beas r elief r equire s corr ective action on appeal. See, e.g. , Hernande

z-Prado v. State , Nos. 03-15-00289—00290- CR, 2015 WL 5919965, at *1 (Tex. App.—Austin Oct. 7, 2015, order ) (per curia m ); E x 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). I n light of the mandato ry l an g uag e of section seven and in light of the prior deter mination by t h e court of criminal appea ls in Urias that claims simil ar to the one prese nted here but under a differ ent s tatute m ay be broug ht on appea l reg ardle ss of whether the claims wer e prese nted to a trial c ourt, we c onclude that King ’s appe llate issue is proper ly befor e this Court. Having reviewed the district court’s order deny ing King ’s habea s relief and the g overning statutory provision, we ag ree with King that the order does not comply with the mandatory require ments of section seven of article 11.072, but we disag ree with King reg arding the appropr iate

reme dy

. As set out above, King contends that the district court’s order should be reve rsed and that the case should be rema

nded for further proce eding s. Although King corr ectly points out that some appellate courts have reve rsed a trial court’s ruling and rema nded t h e ca s e i f t he require ments of section seven wer e 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 Fe b. 4,

52016, no pet.) (mem. op., not desig nated for publi ca t i o n ); E x parte Jones , 367 S.W .3d at 697; Ex parte Garcia , No. 14-10-00978- CR, 2012 WL 760907, at *2 (Tex. App.—Houston [14t h Dist.] Mar. 8, 2012, no pet.) (mem. op., not desig nated for publication), sever al appellate courts prese nted with that issue, including this Court, have deter mined that the case should be abate d instead, see Ex parte Blanco , No. 01-17-00383- CR (Tex. App.—Houston [1st Dist.] J uly 25, 2017, order ); Hernande z-Prado , 2015 WL 5919965, at * 1 ; Ex parte Rojas , No. 14-14-00781- CR (Tex. App.—Houston [14t h Dist.] J an. 22, 2015, order ) (per curia m); Ex parte Vasquez , No. 01-14-00613- CR (T ex . 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.

Moreove r, Rule of Appellate Procedur e 44.4 explains that appellate courts may not affirm or reverse a trial court’s judgment if “the trial court’s errone ous action or failure or r ef u s al
to act prevents the proper prese ntation of a case to the court of appeals” and if “the trial court can

corr ect its action or failure to act” and further instructs that in those circ umstances appellate courts should, instead, “dire ct the trial c ourt to corr ect the e rror .” Tex. R. App. P

. 44.4; see also State v. Cullen , 1 9 5 S.W .3d 696, 698 (Tex. Crim. App. 2006) (explaining that “Rule 44.4 authorizes the court of appea ls to rema

nd the ca se to the trial cour t” for e ntry

of finding s of fa ct and conclusions of law “ so that the court of appea ls is not forced to infe r fa cts from a n unexplained ruling” ). I n light of the g uidance from Rule 44.4 and in light of the manner in which this Court has addre ssed this issue previously , we believe that the better prac tice in this cas e i s t o ab at e this appea l. Acc ording ly , we abate this appea l to allow the district court to clar ify its Dec ember 12, 2017 order in a manner that is consistent with section seven of article 11.072. See Tex. C o d e C ri m .

6Proc. ar

t. 11.072, § 7. The dist rict court shall issue an order comply ing with section seven and, if

war rante d, enter finding s of fac t and conc lusions of law supporting the orde r and sha ll arra ng e for the filing of a supplemental cler k’s rec ord containing the order and any fi n d ings and conclusions made by the district court no later than September 14, 2018. Fur ther, the parties are order ed to file with this Court supple mental appellate briefing reg arding the propriety of the district court’s order and, if any are enter ed, o f t h e d i s t rict court’s finding s and conclusions. See Tex. R. App. P. 38.7 (authorizing appellate court t o reque st supplemen tal briefing “whe never justice require s” and “on whateve r rea sonable terms t h e co u rt may presc ribe” ). The supplemental appellant’ s brief will be due on or before October

15, 2018, and the suppleme ntal appellee ’s brief will be due on or be fore the thirtieth day

afte r the supplementa l appellant’s br ief ha s been f iled. I n addition, we observe that there may be an err or in the district court’s cer tification of King ’s rig ht to appeal. When dete rmining w hether an appe llant in a

criminal ca se has the r ight
to appea l, we examine the trial court’s cer tification for defe ctiveness, define d as a cer tification that is “ c o r r e c t in f o r m b u t w h ic h , w h e n c o mp a r e d to th e r e c o r d b e f

o r e th e c o u

r t, p r o v e s to b e in a c c u

r a te

. ” De a r s v. S t a t e , 154 S.W .3d 610, 614 (Tex. Crim. App. 2005). I f the cer tification appea

rs to b e defe ctive, we must obtain a corr ect c ertification. Id. at 614-15; see Tex. R. App. P . 34.5(c) , 37.1.

I n its cer tification, the di strict court checke d the box in dicating that this “is a pleabarg ain case , but matters wer e raised by wr i t t en m o tion filed and ruled on befor e trial and not withdrawn or waived, and the defe ndant has the rig ht of appea l.” Although the rec ord ref lects that King enter ed into a plea- barg ain ag ree ment reg arding the underly ing offe nse of driving while intox icated, the appea l at issue here conce rns the district court’s denial of King ’s habea s application,

7and “an order deny ing an application for writ of habea s cor p u s a r is in g from a community -super vision

case is an appea lable order .” See Ex parte Saylee , No. 03-18-00124- CR, 2018 WL 1833533, at *1 (Tex. App.—Austin Apr. 17, 2018, order) ( per c uriam). Unde r the Rules of Appellate P roce dure,

a trial court is require d to “ente r a cer tification of the defe ndant’s rig ht of appea l eac h time it enter s a ju d g me n t o f g

u il t o r o th e r a

p p e a la b le o r d e r . ” T e x. R. A

p p . P. 2 5

. 2 ( a ) ( 2 )

. Wh e n p r e v io u s ly c o n f r o n te d with a si milar cer

tification in a habeas appeal, thi s Court expl ained that a cer tification of the r ight
to a ppeal a post-conviction habe as ruling stating tha t the case was a plea- barg ain case and that the individual ha d no rig ht to appea l w as defe ctive even though a plea- barg ain ag ree ment was enter ed during the trial of the underly ing offe nse beca use the appea l at issue was the denial of habea s relief under an appea lable order issued aft er t h e conviction. See Ex parte Saylee , 2018 WL 1833533,
at *1; see also Ex parte Tarango , 116 S.W .3d 201, 203 (Tex. App.— E l P as o 2003, no pet.) (dete rmining tha t cer

tification requir ement applies to orde rs “de ny ing ha beas c orpus re lief” )

. Ba sed on the rec ord befor e this Court, it appea rs that the district court’s cer tification of King ’s rig ht to appea l signe d J anuar y 29, 2018, may be incorre ct. There fore , we abate the appea l and rema nd the case to the district court to either issue a new c ertification or issue finding s of fac t and conclusions of law explaining how this appea l constitutes an appea l of a plea- barg ain case and what matters p re s ented in the habea s application wer e ruled on befor e trial but not waived or withdrawn. See Tex. R. App. P. 37.1; Dears , 154 S.W .3d at 614-15. The amende d cer tification or the finding s and conclusions should be included in the supplemental cler k’s rec ord discussed above. I t is so ordered on A ug ust 14, 2018.

8Be fore J ustices Pury ear , Pemberton, and B ourland

Abated a nd Remanded Filed: Aug ust 14, 2018 Do Not Publish

9