Ex Parte Uriel Benitez Flores

Fourth Court of Appeals San Antonio, Texas

September 29, 2022

No. 04-22-00602-CR

EX PARTE Uriel BENITEZ FLORES

From the County Court, Kinney County, Texas Trial Court No. 12653CR Honorable Tully Shahan, Judge Presiding

ORDER This is an appeal of the trial court’s ruling on a pre-trial writ of habeas corpus. The clerk’s record has been filed in this court; however, the record does not contain a copy of the trial court’s certification of defendant’s right of appeal as required by Rule 25.2(a)(2)(d) of the Texas Rules of Appellate Procedure.

Rule 25.2 provides that in a criminal appeal where the defendant is the appellant, “[t]he trial court shall 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). Rule 25.2 further provides, “If the defendant is the appellant, the record must include the trial court’s certification of the defendant’s right of appeal under Rule 25.2(a)(2),” and cautions that “[t]he 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 these rules.” Id. R. 25.2(d). Rule 25.2 does not contain any language excluding a defendant’s appeal of a pre-trial habeas ruling from these provisions. See id.; see also Ex parte Matthews, 452 S.W.3d 8, 12 (Tex. App.—San Antonio 2014, no pet.) (noting denial of relief in pre-conviction habeas corpus proceeding is immediately appealable “because the habeas proceeding is in fact considered a separate criminal action, and the denial of relief marks the end of the trial stage of that criminal action”) (internal quotation marks omitted).

Rule 25.2 requires the trial court to enter a certification of the defendant’s right of appeal when it enters a judgment of guilt or other appealable order. Accordingly, we ORDER the trial court to enter a certification of defendant’s right of appeal and forward it to the district clerk for inclusion in the record no later than October 10, 2022. We further ORDER the Kinney County District Clerk to file the certification in a supplemental record and file the supplemental record in this court no later than October 14, 2022. See TEX. R. APP. P. 34.5(c)(2).

_________________________________ Lori I. Valenzuela, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 29th day of September, 2022.

___________________________________ MICHAEL A. CRUZ, Clerk of Court