Malik Herman v. the State of Texas

NO. 12-23-00102-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MALIK HERMAN, § APPEAL FROM THE 349TH
APPELLANT
§ DISTRICT COURT
V.
§ HOUSTON COUNTY, TEXAS
THE STATE OF TEXAS,
APPELLEE

MEMORANDUM OPINION
PER CURIAM

Malik Herman, acting pro se, filed a notice of appeal from a conviction in which sentence
was imposed on April 3, 2023. When Appellant failed to file the required docketing statement,
this Court remanded the case to the trial court to determine whether: (1) Appellant is indigent
and entitled to the appointment of counsel on appeal; (2) Appellant has sufficient funds to retain
counsel; or (3) Appellant desires to represent himself on appeal. On June 7, the trial court
provided this Court with findings of fact and conclusions of law, including the following: (1)
Appellant pleaded “guilty” to possession of a controlled substance, pleaded “true” to violations
of his “deferred probation” for engaging in organized criminal activity, and was sentenced by
agreement to five years in prison, (2) Appellant signed paperwork waiving his right to appeal,
and (3) Appellant has no right to appeal. The trial court’s certification of Appellant’s right to
appeal states that this is a plea bargain case, and the defendant has no right of appeal, and that
Appellant waived the right of appeal. The certification is signed by Appellant and his
counsel. See TEX. R. APP. P. 25.2(d).
When the defendant is the appellant, the record must include the trial court’s certification
of the defendant’s right of appeal. Id. This Court must dismiss an appeal “if a certification that
shows the defendant has the right of appeal has not been made part of the record.” Id. Based on
the trial court’s findings and conclusions, the trial court’s certification appears to accurately state
that this is a plea bargain case and Appellant has no right to appeal. See Dears v. State, 154
S.W.3d 610 (Tex. Crim. App. 2005) (court of appeals should review record to determine whether
certification is accurate); see also Greenwell v. Court of Appeals for Thirteenth Judicial
Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005) (when record is incomplete, appellate court
should review “whatever record does exist” to determine whether appellant has right to appeal);
Terrell v. State, 264 S.W.3d 110, 112-13- (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing
Dears and explaining that appellate court must examine certification to determine if it is
defective by comparing it to available record); see also Hilton v. State, No. 07-16-00446-CR,
2017 WL 3723344, at *1 (Tex. App.—Amarillo Aug. 29, 2017, no pet.) (mem. op., not
designated for publication) (dismissing under Rule 25.2(d) “based on the trial court’s
certification and findings of fact and conclusions of law certifying that appellant has waived her
right of appeal”). Because the trial court did not grant Appellant the right to appeal his
conviction, we dismiss the appeal.

Opinion delivered June 14, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

2
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 14, 2023

NO. 12-23-00102-CR

MALIK HERMAN,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 22CR-166)

THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court
below for observance.

By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J