author: EDELMAN, Justice.

text:
    Marta A. LENTINO, Appellant, v. FROST NATIONAL BANK f/k/a Cullen Center Bank and Trust, Appellee, Dov Avni Kaminetzky, Appellant, v. Frost National Bank f/k/a Cullen Center Bank and Trust, Appellee.
    Nos. 14-02-00519-CV, 14-02-00520-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 4, 2003.
    Rehearing Overruled Jan. 29, 2004.

      Marta A. Lentino, Houston, for appellant.
    David A. Furlow, Dov Avni Kaminetzky, Willard P. Conrad, Richard T. Howell, Jr., Houston, for appellee.
    Panel consists of Justices EDELMAN, FROST, and GUZMAN.
   OPINION

EDELMAN, Justice.

Marta A. Lentino and Dov Avni Kami-netzky each appeal various orders of the trial court on numerous grounds. Because we can find no final judgment in the record for this case, we dismiss the appeals for lack of jurisdiction.

Background

In 1999, Lentino (and eight other plaintiffs) filed suit against Frost National Bank, f/k/a Cullen Center Bank and Trust (“Frost”) for wrongfully obtaining post-judgment remedies against the property of persons and entities that were not parties or judgment debtors in the underlying case. In 2000, Frost filed a counterclaim to recover attorney’s fees against Lentino for filing groundless pleadings. In February of 2001, Kaminetzky intervened, seeking recovery of compensation from some of the plaintiffs (excluding Lentino) for services he allegedly rendered as a trustee and investment agent.

On May 24, 2001, Lentino filed a motion to nonsuit all of her claims against Frost, and the trial court entered an order granting this nonsuit on June 1, 2001 (the “June order”). However, on May 28, 2001, Len-tino filed a counter-counterclaim to Frost’s counterclaim, seeking sanctions for discovery abuse. On June 11, 2001 (and subsequently), Lentino supplemented her counter-counterclaim to assert claims for fraud, misrepresentation, and conspiracy based on facts similar to those she had alleged in her nonsuited claims. By February of 2002, among other things that had occurred in the ease, Frost had filed, and the trial court had granted, a motion to non-suit Frost’s claims and to strike Kaminetz-ky’s reintervention (the “February order”).

Existence of Final Judgment

With exceptions not applicable here, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). In cases such as this, where only one final, appealable judgment can be rendered and a judgment has been issued without a conventional trial, the judgment is final only if it either actually disposes of all claims and parties before the court, or it states with unmistakable clarity that it is a final judgment. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex.2001); Lehmann, 39 S.W.3d at 192, 200.

Within the record of this case, we have found various orders which dispose of discrete portions of the case but none which either: (1) unequivocally expresses an intent to finally dispose of the case; or (2) effects an actual disposition of all parties and claims remaining in the case at the time the order was signed. Frost argues that either the June order (granting the Lentinos’ motion for nonsuit) or the February order (granting Frost’s motion to nonsuit its counterclaim and strike Kaminetzky’s reintervention) disposed of all claims and parties remaining in the case at the time each order was entered. However, neither order has language purporting to dispose of any claims or parties other than those specifically addressed, and our record does not contain another order that had been signed: (1) by the time of the June order disposing of Frost’s counterclaim, Kaminetzky’s intervention, or Lentino’s counter-counterclaim (filed on May 28 and later supplemented); or (2) by the time of the February order (or thereafter) disposing of Lentino’s counter-counterclaim.

Frost contends that Lentino’s counter-counterclaim was waived and is thus of no effect in this case because it was filed after Lentino had nonsuited her claims and thereby required a motion to reinstate in order to be effective. In a case where no other party has a claim for affirmative’ relief pending, the nonsuit of a plaintiffs claims effects a dismissal of the entire lawsuit and thus requires the filing of either a motion to reinstate the action or an entirely new lawsuit in order to provide a proceeding in which the claims can be reasserted. However, where another party has a claim pending for affirmative relief, a nonsuit does not bring about a dismissal of the entire case. In that event, where the lawsuit remains active, the parties have not cited, and we have not found, any authority requiring a former plaintiff to file a motion to reinstate or new lawsuit in order to reassert previously nonsuited claims.

In this case, at the time Lentino filed her nonsuit, other claims were still pending in Kaminetzky’s intervention and Frost’s counterclaim that prevented Lenti-no’s nonsuit from effecting a dismissal of the entire action. To whatever extent, if any, Lentino’s counter-counterclaim can be considered to have reasserted any of her nonsuited claims, it did not seek to reassert them in her capacity as an original plaintiff in the case, but only as a counter-plaintiff. In that her nonsuit did not terminate the entire case and her nonsuited claims, if reasserted at all, were not sought to be restored to their previous status, we can find no rationale (as well as no authority) for subjecting her counter-counterclaim to a requirement to file a motion to reinstate, ie., as contrasted from the rules generally governing the filing of a counterclaim.

Even if her counter-counterclaim was deficient for failing to file a motion to reinstate, a question would remain as to the effect of that failure on the status of the counter-counterclaim. If the result was that the counter-counterclaim should thereby simply be ignored and given no effect, and without any motion or ruling so indicating or determining, as Frost contends, then it would seemingly have been possible for a final judgment to be entered in the case on Frost’s claims that would not only not dispose of the counter-counterclaim but possibly also present a res judicata bar to filing it in another action. Such an approach would also be contrary to the general rules (and policies) that: (1) pleading defects of all kinds are waived if not excepted to in writing and presented to the trial court; and (2) even where exceptions to pleading defects are sustained, a party must be given an opportunity to correct the defects before suffering adverse consequences. In the absence of clear authority dictating such incongruous results, we decline to adopt Frost’s contention. Instead, we conclude that there is no final judgment in our record of this case and, accordingly, dismiss Lentino’s and Kaminetzky’s appeals for lack of jurisdiction.

      . Lentino is the only former plaintiff who is a party to this appeal.

      . Among other things, the counter-counterclaim alleged that Frost misrepresented to the court in the prior action that: (1) a debt existed, whereas Frost’s former Senior Vice President admitted that there was no debt; and (2) Frost had standing to seize the assets when its merger with the original lending bank had not yet been consummated.

      . See infra, note 7.

      . See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (Vernon Supp.2003).

      . Because the law does not require a final judgment to be in any particular form, whether a judicial decree is a final judgment for purposes of appeal must be determined from its language and the record in the case. Lehmann, 39 S.W.3d at 195. Thus, language that the plaintiff take nothing or that the case is dismissed shows finality if there are no other claims by other parties. Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex.2002). However, if all claims and parties have not actually been disposed, use of a "mother hubbard” clause or the term "final” is not sufficient to confer finality unless the intent to finally dispose of the case is otherwise unequivocally expressed in the words of the order. Lehmann, 39 S.W.3d at 200-01, 203-06.

      . Nor have we found a severance or other order that caused any order to become final.

      . The record is unclear regarding the disposition of Kaminetzky’s original intervention. According to Lentino’s brief, it was stricken on June 4, 2001. Conversely, according to Frost’s brief and a discussion reflected in the reporter’s record of the August 17, 2001 sanctions hearing, it was nonsuited by an order signed on June 20, 2001. However, the parties have not cited, and we have not found, any location in our record containing an order disposing of Kaminetzky's intervention until February of 2002. Without a written order granting the nonsuit, the periods for the trial court’s plenary power and appellate deadlines do not commence to run. See In re Bennett, 960 S.W.2d 35, 38 (Tex.1997).

      . The trial court’s remarks at the hearing on February 18, 2002, reflect an understanding that all claims in the case either had previously been nonsuited or were being nonsuited that day. Although Lentino made reference to her counter-counterclaim during this hearing, she did not explain clearly how it was still pending in the case.

      . Ashpole v. Millard, 778 S.W.2d 169, 171 (Tex.App.—Houston [1st Dist.] 1989, no writ) (recognizing that once a case is dismissed, no further action may be had in that cause and any further action requires either a new lawsuit or a motion to reinstate); United States Fid. & Guar. Co. v. Beuhler, 597 S.W.2d 523, 524 (Tex.Civ.App.-Beaumont 1980, no writ) (holding that the filing of an amended pleading following the dismissal of a case could not vacate the order of dismissal and reinstate the case on the trial court’s docket).

      . See BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840, 842 (Tex.1990) (holding that, because ANR's counterclaim stated a claim for affirmative relief, the trial court did not err in refusing to dismiss the entire case upon BHP's motion for nonsuit); see also TEX. R. CIV. P. 162.

      . See, e.g., State and County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex.2001) (recognizing that the transactional approach to res judicata requires a defendant to bring as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the opposing party's suit).

      . See TEX. R. CIV. P. 90.

      . See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998).


source: Caselaw Access Project

author: Justice BAIRD (Assigned).

license: Public Domain

text:
    Roland MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 13-02-305-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 20, 2004.
    Rehearing Overruled June 17, 2004.
    Philip Thomas Cowen, Brownsville, for Appellant.
    Robert H. Moore, Jr., Asst. County (Criminal Dist.) Atty., Yolanda De Leon, Dist. Atty., Brownsville, for State.
    Before Justices YÁÑEZ, GARZA, and BAIRD.

      . Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex Gov’t Code Ann. § 74.003 (Vernon Supp. 2004).

   OPINION

Opinion by

Justice BAIRD (Assigned).

Appellant was charged in a three count indictment with the offenses of aggravated sexual assault, sexual assault, and indecency with a child. The indictment further alleged a prior felony conviction for the purpose of enhancing the range of punishment. Appellant pled guilty to indecency with a child, enhanced, and the prosecutor agreed not to adjudicate the assault charge and make no recommendation regarding sentencing. The trial judge assessed punishment at twenty-five years confinement in the Texas Department of Criminal Justice — Institutional Division. We dismiss.

The 2003 amendments to the Texas Rules of Appellate Procedure require the trial court to certify a defendant’s right to appeal. See Tex.R.App. P. 25.2(a)(2). On August 28, 2003, we abated this appeal to give the trial court the opportunity to file the certification. We received the certification on September 25, 2003. See Tex. RApp. P. 25.2(d). The certification states that this is “a plea bargain ease, and the defendant has no right of appeal.”

Under the plea agreement in this case, the appellant agreed to plead guilty to a lesser offense and the prosecutor agreed to refrain from bringing other charges. According to the Texas Court of Criminal Appeals, a “charge bargain,” as in the instant case, affects punishment. See Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App.2003). Accordingly, because the appellant pleaded guilty and the “punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant,” we hold that the plea-bargaining appellant had no right of appeal. See id. at 814.

In his sole issue, appellant argues that the State breached the plea agreement by making a specific punishment recommendation to the court. Based on our review of the record, we agree. However, we need not consider what effect this could have on appellant’s right to appeal because the issue has not been preserved for our review. Following trial, defense counsel filed a motion for new trial but did not raise the State’s breach of the agreement as a ground for relief.

In Mason v. State, 604 S.W.2d 83, 84 (Tex.Crim.App. [Panel Op.] 1979), the State violated the plea agreement by making an argument on the issue of punishment. On appeal, the defendant sought reversal because of the State’s breach. However, the Texas Court of Criminal Appeals affirmed because the State’s “argument was made without objection and appellant did not request to withdraw his plea of guilty.” Id. In light of Texas Rule of Appellate Procedure 33.1, requiring the preservation of appellate complaints, and Mason, we are constrained to hold the issue has not been preserved for our review.

We dismiss this appeal.

      . We note that appellant was represented by the same counsel in the trial court as on appeal. This opinion will not prevent appellant from seeking relief in an application for writ of habeas corpus. Ex parte Varelas, 45 S.W.3d 627, 629-30 (Tex.Crim.App.2001).


author: PER CURIAM. Justice CASTILLO,

text:
    Brian ERNST, Appellant, v. The STATE of Texas, Appellee.
    No. 13-02-273-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 26, 2004.

      Joseph V. Collina, Corpus Christi, for appellant.
    Carlos Valdez, Nueces County Dist. Atty., Douglas K. Norman, Asst. Dist. Atty., Corpus Christi, for state.
    Before Justices YÁÑEZ, RODRIGUEZ, GARZA, and CASTILLO.
   ORDER

PER CURIAM.

Brian Ernst appeals his conviction for indecency with a child. Ernst pled guilty pursuant to an agreed punishment recommendation. The trial court followed the recommendation and sentenced him to three-years imprisonment. Ernst challenges his conviction by the following three issues: (1) his constitutional right not to be prosecuted twice for the same offense was violated when the State re-indicted him for an offense that was the subject of a pretrial diversion agreement; (2) prosecution for the offense violated his right to due process; and (3) the State did not use due diligence in prosecuting him for the alleged violation of his pre-trial diversion agreement.

Background

After a grand jury indicted Ernst for indecency with a child, he entered into a pre-trial diversion agreement for a term of one year. Exactly one year and four days later, the State filed a notice of non-compliance, stating that Ernst had broken the terms of the agreement. Subsequently, the same allegations were brought before a different grand jury, which indicted Ernst for the same offenses that were the subject of the pre-trial diversion agreement.

Before trial, Ernst filed a motion to dismiss the indictment, arguing, inter alia, that he had “substantially completed the requirements” of his pre-trial diversion agreement. No order or other explicit ruling on the motion to dismiss appears in the record. Ernst then brought the issue to the trial court’s attention again, this time in a pre-trial application for writ of habeas corpus. The court held a hearing on the merits of the habeas application, at which time it entertained arguments by both Ernst and the State regarding the relief sought. Specifically, the trial court heard arguments as to whether the State could re-indict and prosecute Ernst for the same offenses that were the subject of the pre-trial diversion agreement. On the record, the trial court stated that it would consider the case law on the issue and review the parties’ briefs and rule on the habeas application by the end of the week. As with the motion to dismiss, however, no written order on the habeas application became part of the record. A docket sheet entry shows that the trial court denied the relief on the same day of the hearing on the merits, March 7, 2002.

On March 15, 2002, Ernst pled guilty pursuant to an agreed punishment recommendation. The trial court signed the judgment on April 30, 2002. Ernst filed a notice of appeal on May 8, 2002. On July 21, 2003, this Court abated Ernst’s appeal and ordered the trial court to supplement the record with a certification of Ernst’s right to appeal. See Tex.R.App. P. 25.2(a)(2). Pursuant to the order, the trial court supplemented the record with a certification indicating that this is a plea bargain case and that Ernst has no right of appeal.

Discussion

In relevant part, rule of appellate procedure 25.2(a)(2) states: “In a plea bargain case ... a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial; or (B) after getting the trial court’s permission to appeal.” Id. In this case, which both parties agree is a plea bargain case, Ernst filed a motion to dismiss and a pretrial application for writ of habeas corpus. Both filings urged a common ground for terminating the case: the State could no longer prosecute Ernst for the charged offenses because he had completed his one-year diversion agreement before the second indictment was issued. The motion to dismiss was not ruled on expressly, but the application for writ of habeas corpus, which argued the same basis for relief as the motion, was denied by the trial court after the court considered the merits of the application.

We conclude that insofar as both the motion to dismiss and the application for habeas corpus urged the same ground for relief, the trial court’s ruling on Ernst’s habeas corpus application was an implicit ruling on his motion to dismiss. See Tex.R.App. P. 33.1(a)(2)(A); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.-San Antonio 2000, no pet.) (“A ruling is implicit if it is unexpressed but capable of being understood from something else.”); see also Sanchez v. Rodriguez, No. 13-00-059-CV, 2001 Tex.App. LEXIS 6783, at *10 (Corpus Christi October 4, 2001, pet. denied) (not designated for publication) (same). Thus, Ernst may appeal the matters raised in the motion to dismiss. See Tex.R.App. P. 25.2(a)(2)(A).

Response to the Dissent

The dissent would hold that Ernst has no right to appeal. It would dismiss Ernst’s appeal because the trial court did not issue a -writ or enter a written order denying Ernst’s pre-trial application for writ of habeas corpus. According to the dissent, Ernst cannot appeal the denial of his motion to dismiss under rule 25.2 as a “matter raised by written motion and ruled on before trial” because the trial court did not deny his habeas application in a written order that undertook to resolve the merits of his habeas claims as required by Hargett. Ex parte Hargett, 819 S.W.2d 866, 869 (Tex.Crim.App.1991) (holding that trial court ruled on the merits of a habeas application even though it never issued a writ). Holding a hearing on the merits of Ernst’s application and declaring that it would issue a ruling, the dissent contends, does not evidence the trial court’s intention to resolve the merits. Thus, for the dissent, the docket sheet entry showing that Ernst’s application for writ of habeas corpus was denied following the hearing on the merits is not enough to give Ernst a right to appeal the denial of his habeas application.

This is a conclusion with which we need not disagree. In fact, the dissent’s position is as perplexing as it is inapposite, given that we have not held that Ernst has a right to appeal the denial of his habeas application. Ernst has a right to appeal the denial of his motion to dismiss under rule 25.2 as a “matter raised by written motion and ruled on before trial.”

With all its talk of bridges and scaffolding, the dissent has lost itself in metaphors and obscured the legal basis for Ernst’s right to appeal. Before trial, Ernst filed a motion to dismiss in which he claimed that he could not be prosecuted because he had substantially completed the terms of his pre-trial diversion agreement. No express ruling on this motion appears in the record, and we can only assume that the trial court either ignored it or informally overruled it. Apparently in response, Ernst filed a pre-trial application for writ of ha-beas corpus in which he raised the same objection to the State’s case. The trial court did not ignore this filing. Rather, it held a hearing, at which time it entertained arguments from both sides on the merits of Ernst’s objections to prosecution. The court then denied the application. We have not held that Ernst has a right to appeal from this ruling. Instead, we have concluded that this ruling was also an implicit denial of Ernst’s motion to dismiss. In other words, if Ernst’s motion to dismiss had not been overruled by the time of the habeas hearing, it was certainly overruled when the court denied his habeas application.

Rule 25.2 allows a defendant in a plea bargain case to appeal matters raised by written motion and ruled on before trial. Tex.R.App. P. 25.2. It does not state that the ruling must be made by written order. See id. In fact, the rules of procedure specifically provide that a written order is not required to preserve a complaint for appeal. See Tex.R.App. P. 33.1(c). Furthermore, the ruling need not be express. See Tex.R.App. P. 33.1(a)(2)(A). A ruling that is neither written in an order nor expressly stated on the record can be appealed if it is implicit. See id.

Here, the trial court’s denial of Ernst’s motion to dismiss is implicit in its denial of his habeas application. It makes no difference that the ruling on his habeas application might not provide an independent basis for appeal, as the dissent argues. Hargett and its progeny are irrelevant to the issue of whether Ernst’s motion to dismiss was denied. Those cases deal with appeals from habeas proceedings. Not one of them discusses implied rulings on motions to dismiss, as we have in this case. Thus, the dissent’s lengthy discussion of why those cases establish that Ernst has no right to appeal is largely irrelevant. Ernst has a right to appeal because we construe the court’s denial of Ernst’s habeas application as a denial of Ernst’s motion to dismiss.

The dissent would hold that there is no such thing as an implicit ruling. The dissent would re-write rule 33.1 to say that a court can rule only by written order and that only express rulings can be appealed. However, it is not within the power of this Court to re-write the rules of appellate procedure. We must accept and apply the rules as promulgated.

Conclusion

For the foregoing reasons, we abate this appeal and order the trial court to amend the defective certification so that it shows that this “is a plea bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal.” See Tex R.App. P. 44.4. We further order the trial court to forward the amended certification to this Court by means of a supplemental clerk’s record on or before June 9, 2004, or if the trial court is unable to comply by said date, to file a letter with the clerk of this Court stating when it can comply.

Dissent by Justice ERRLINDA CASTILLO.

Justice CASTILLO,

dissenting.

I respectfully dissent on both substantive and procedural grounds from the per curiam order abating this case to the trial court for amendment of the “defective certification” of Ernst’s right of appeal. Substantively, the record does not show that the trial court denied the merits of Ernst’s pre-trial application for writ of habeas corpus on double-jeopardy grounds. Procedurally, only a docket entry, not a written order, reflects the trial court’s disposition of the habeas corpus application, and the record does not support exercise of our limited power to review Ernst’s double-jeopardy claim in the face of the trial court’s certification that Ernst has no right of appeal. I would begin my analysis with the limitations on our review power imposed by rule 25.2 of the rules of appellate procedure. See Tex.R.App. P, 25.2(a)(2).

I. THE SCOPE OF APPELLATE REVIEW POWER UNDER RULE 25.2

Ernst filed a notice of appeal on May 8, 2002. The parties completed their briefing on August 15, 2002. The case was argued and submitted on January 22, 2003. We requested post-submission briefing from the parties regarding application of amended rules of appellate procedure, effective January 1, 2003, to this appeal. Ernst complied on January 23, 2003. The State followed on January 27, 2003. This Court concluded that the amended rules apply to all criminal appeals pending on the effective date of the amendments. See, e.g., Gearhart v. State, 122 S.W.3d 459, 463 (TexApp.-Corpus Christi 2003, pet. filed). Accordingly, on July 21, 2003, we abated the case for filing of a certification of Ernst’s right to appeal (a “COR-TA”). See Tex.R.App. P. 25.2(d). On filing of the CORTA, we reinstated the case on August 21, 2003. Thus, the rules of appellate procedure that this Court has determined are applicable to this appeal limit our power to review errors claimed by Ernst on appeal. See Woods v. State, 108 S.W.3d 314, 316 (Tex.Crim.App.2003).

A. What Ernst May Not Appeal

Current rule 25.2(a)(2) of the rules of appellate procedure — like former rule 25.2(b)(3) and its predecessor, rule 40(b)(1) — limits a defendant’s right of appeal in plea-bargain cases. Carroll v. State, 119 S.W.3d 838, 839 (Tex.App.-San Antonio 2003, no pet.) (per curiam). “In a plea bargain case — that is, a case in which a defendant’s plea was guilty or nolo con-tendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial; or (B) after getting the trial court’s permission to appeal.” Tex.R.App. P. 25.2(a)(2); see Cooper v. State, 45 S.W.3d 77, 79 (Tex. Crim.App.2001) (interpreting former rule 25.2(b)(3) in the same way as former rule 40(b)(1), which “forbade appeal in every plea-bargained, felony case unless one of two conditions was met: the appellant had permission of the trial court, or the appeal was from a written, pre-trial motion.”); see also Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App.1994) (interpreting former rule 40(b)(1) as prohibiting in plea-bargained cases appeal of nonjurisdictional defects occurring after entry of plea).

Accordingly, the court of criminal appeals has instructed that “[t]he plain import of [former rule 25.2(b)(3) ] is that appeals from plea-bargain cases are limited to the situations set forth in the rule.” Woods, 108 S.W.3d at 316. Like Ernst, Woods had pleaded guilty pursuant to an agreed punishment recommendation. Id, at 315. The trial court sentenced him in accordance with the plea agreement. Id. Woods filed a pro se general notice of appeal and a motion to withdraw his guilty plea, challenging the competency finding that resulted from a mental evaluation ordered by the trial court in response to his pre-trial motion for an examination. Id. Appellate counsel appointed for Woods filed an amended notice of appeal, alleging that the appeal was for jurisdictional defects and challenging both the voluntariness of Woods’s guilty plea and a written pre-trial order finding him competent to stand trial. Id. Appellate counsel then filed an Anders brief and moved to withdraw as counsel. Id. As required, the court of appeals conducted an independent review of the record. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). It concluded that an ineffective-assistance-of-counsel claim might be meritorious based on the fact that trial counsel did not file a notice of intention to raise an insanity defense or request appointment of a defense mental health expert. Woods, 108 S.W.3d at 315 (citing Woods v. State, 59 S.W.3d 833 (Tex.App.-Texarkana 2001)). The court of appeals granted the motion to withdraw, abated the appeal, and remanded the case for appointment of new appellate counsel. Woods, 108 S.W.3d at 315. Not surprisingly, new appellate counsel filed an appellate brief claiming that trial counsel was ineffective in failing to either file notice of an insanity defense or request appointment of a defense expert. Id. The court of appeals sustained the second issue. Id. The court of criminal appeals reversed, holding that the extra-notice recitations in the notice of appeal required by former rule 25.2(b)(3) must be true and supported by the record. Id. at 316. The court concluded:

The plain import of the rule is that appeals from plea-bargain cases are limited to the situations set forth in the rule. Consequently, a court of appeals is not authorized to address points of error that do not fall within one of the categories listed in [former] Rule 25.2(b)(3). While appellant’s amended notice of appeal makes at least one extra-notice allegation, lack of jurisdiction, his brief does not raise a jurisdictional claim. The other two allegations — vol-untariness of the plea and appeal of a written pre-trial order finding appellant competent — do not state grounds cognizable under Rule 25.2(b)(3), but even if they did, the ineffective assistance claims alleged in the brief do not fall within either of these categories. We conclude that the Court of Appeals erred in considering appellant’s ineffective assistance allegations.

Id. [footnote omitted]. The court noted that it has held that plea-bargaining defendants may not appeal the voluntariness of their pleas. Id. at n. 6 (citing Cooper, 45 S.W.3d at 77). With regard to Woods’s claims on appeal, the court of criminal appeals reasoned:

As for the appeal of the trial court’s written order finding appellant competent, the notice does not allege that appellant’s incompetency was a matter raised by written motion and ruled upon before trial. And the record would not substantiate such a recitation: appellant filed written motions for psychiatric examinations and those motions were granted. Whether appellant was actually competent to stand trial was ruled upon by written order but was never advanced in a written motion.

Woods, 108 S.W.3d at 316 n. 6. As a consequence, the court remanded the case for proceedings consistent with the opinion. Thus, Woods emphasizes that our review power in an appeal from a felony plea entered pursuant to an agreed punishment recommendation is strictly limited. See Tex.R.App. P. 25.2(a)(2).

B. What Ernst May Appeal

Nonetheless, an “agreed punishment recommendation” is required before limitations on our review power apply. See Tex.R.App. P. 25.2(a)(2). An agreement between the State and a defendant may be a plea bargain without having as one of its terms an agreed punishment recommendation that is followed by the trial court. Ramirez v. State, 89 S.W.3d 222, 225 n. 4 (Tex.App.-Corpus Christi 2002, no pet.). Any concession by the State in exchange for the defendant’s guilty plea creates a “plea bargain.” Id. Only a plea bargain that incorporates an agreed recommendation as to punishment and is accepted by the court, however, triggers restrictions on our review power. Id.

Further, “both bargaining and non-bargaining defendants can appeal jurisdictional issues.” Monreal v. State, 99 S.W.3d 615, 620 (Tex.Crim.App.2003). I note that the form promulgated by the court of criminal appeals for use by the bench and bar in preparing CORTAs does not differentiate between “plea bargain” and “agreed punishment recommendation that the trial court followed,” nor does it acknowledge the right to appeal jurisdictional questions. See Carroll, 119 S.W.3d at 840 (noting that CORTA form does not reflect right of defendant to appeal issues unrelated to conviction following deferred adjudication of guilt).

Finally, I note that a sentence outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Perez v. State, 129 S.W.3d 282, 288-89 (Tex.App.-Corpus Christi 2004, no pet. h.) (designated for publication) (citing Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App.2003)). Unlike most trial errors, which are forfeited if not timely asserted, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence. Perez, 129 S.W.3d at 288-89 (citing Mizell, 119 S.W.3d at 806 n. 6). Thus, an appellate court that otherwise has jurisdiction over a criminal conviction may always notice and correct an illegal sentence. Mizell, 119 S.W.3d at 806. I note that the form promulgated by the court of criminal appeals for use by the bench and bar in preparing CORTAs does not include this exception that even a plea-bargaining defendant may appeal the legality of an unauthorized sentence. See Carroll, 119 S.W.3d at 840.

Accordingly, I conclude that the Texas Court of Criminal Appeals authorizes us in appeals following negotiated guilty pleas to address only issues that assert: (1) jurisdictional defects; (2) matters raised by written motion ruled on before trial; (3) matters for which the trial court has granted permission to appeal; and (4) the legality of the sentence imposed as unauthorized by law. See Monreal, 99 S.W.3d at 620 (jurisdictional defects); see also Woods, 108 S.W.3d at 316 (matters raised by pre-trial motions; permissive appeals); Mizell, 119 S.W.3d at 806 (legality of sentence).

Further, I conclude that the record must substantiate the specific grounds for appeal noted in a CORTA. See Waters v. State, 124 S.W.3d 825, 826 (Tex.App.Houston [14th Dist.] 2003, no pet.) (“Despite the trial court’s certification [that the appellant had the right to appeal], we believe the Rule 25.2 requirements recited in a certification must be true and supported by the record.”); see also Woods, 108 S.W.3d at 316 (requiring that record substantiate extra-notice provisions of former rule 25.2(b)(3)). Similarly, while the issue has not been addressed specifically by the court of criminal appeals, I conclude that the record must substantiate that the defendant has no right of appeal if the COR-TA so reflects.

After the trial court denied his application for writ of habeas corpus, Ernst pleaded guilty, pursuant to an agreed punishment recommendation, to the offense of indecency with a child. The trial court honored the recommendation in sentencing Ernst. The State argues that Ernst waived his double-jeopardy claim when he entered his negotiated guilty plea without securing a ruling on his motion to dismiss. See Tex.R.App. P. 25.2(a)(2)(A). I agree.

As noted by the majority, the parties agree that this appeal followed a negotiated plea agreement that the trial court honored. Ernst does not challenge the jurisdiction of the trial court or maintain that his sentence was unauthorized and therefore illegal. He does not suggest he has the trial court’s permission to appeal. Rather, he seeks our review of the double-jeopardy claim raised in his motion to dismiss and pre-trial application for writ of habeas corpus. To determine if Ernst has invoked our limited review power, I next would turn to a more thorough review of the record than that undertaken by the majority.

II. THE RECORD

On October 10, 2001, Ernst filed an un-sworn “Motion to Dismiss” that alleged in its entirety that:

1. The complaining witness requests dismissal.
2. Defendant has successfully completed counseling for mental health treatment.
3. Defendant was placed on pre-trial diversion and substantially completed the requirements that were in the contract.

[Footnote added.] No documentation in support of the allegations is attached to the motion to dismiss. The clerk’s record does not reflect that the trial court conducted any hearing on the motion, nor does a court reporter’s record of any hearing on the motion appear in the record.

Thereafter, on February 12, 2002, Ernst filed a “Pre-Trial Application for Writ of Habeas Corpus.” Sworn as “true and correct” in an attached affidavit by Ernst’s trial counsel, the application alleged that:

3. Brian Ernst completed his pre-trial diversion period without timely complaint from the State. Brian Ernst was placed on a 1 year pre-trial diversion under § 76.011(a) Government Code, see (Exhibit A page 2) which states “A person in a pre-trial intervention program may be supervised for a period not to exceed one year.” The date in which he began was November 12, 1999, therefore, he completed his pre-trial diversion on November 12, 2000. On November 16, 2000, and November 28, 2001[sic], a notice of noncompliance was filed with the Court. Clearly this is after the November 12, 2000 deadline and under § 76.011(a) the Community Supervision Department has no authority to complain, because there [sic] service is limited to 12 months. The State was not diligent in complaining if there was a problem with compliance. Once the time period is over, the case is over. 4. On March 15, 2001, Brian Ernst was indicted in cause number 01-CR-0680-F, on the same charges in which he completed the pre-trial diversion in cause number 99-CR-0264-G, 4 months earlier. Here Brian Ernst has completed his pre-trial diversion and the State of Texas is barred from further prosecution of this action.

As with the motion to dismiss, the clerk’s record does not contain a written order on Ernst’s pre-trial application for writ of habeas corpus. The following entries appear on the court’s docket sheet:

Jan 24, 2002 A Writ of Habeas Corpus— argument of counsel — under advisement
Mar-7, 2002 A Writ of Habeas Corpus— denied

A court reporter’s record of the habeas corpus proceeding on March 7, 2002 shows that the trial court took judicial notice of the contents of the pre-trial diversion case (No. 99-CR-0264-G), heard the arguments of counsel, and took the matter under advisement. Other than the pre-trial diversion agreement itself, the record in this appeal does not contain any portion of the record in Case No. 99-CR-0264-G.

The majority bridges the gap between Ernst’s negotiated guilty plea and appellate review of his double-jeopardy claim by construing the docket entry denying his application for writ of habeas corpus as an implicit ruling on his pre-trial motion to dismiss. However, for the trial court’s disposition of the habeas proceeding to be the substantive equivalent of a ruling on Ernst’s motion to dismiss, the record first must affirmatively show that the trial court denied Ernst’s application on the merits. Procedurally, the record must support exercise of our limited review power over the merits of Ernst’s double-jeopardy claim. I conclude that this record is deficient in both respects.

III. ANALYSIS

A. The Substantive Roadblock

It is well settled that no appeal lies from a trial court’s refusal to issue a writ of habeas corpus. Ex parte Noe, 646 S.W.2d 230, 231 (Tex.Crim.App.1983) (en banc); Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex.Crim.App.1981) (en banc); Ex parte Johnson, 561 S.W.2d 841, 842 (Tex.Crim.App. [Panel Op.] 1978); Ex parte Carter, 849 S.W.2d 410, 412 (Tex.App.-San Antonio 1993, pet. ref d). Here, the record reflects only that the trial court denied the application. The record does not show that the trial court not only refused to issue the writ but also denied Ernst’s application on the merits.

The Court of Criminal Appeals has emphasized that Texas law does not provide for a right of appeal from a trial court’s refusal to issue a writ of habeas corpus even if the trial court conducts a hearing. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App.1991). Before Hargett, the majority’s confusion would have been understandable, but the Court of Criminal Appeals has clarified that two different kinds of hearings are available to a trial court in response to a writ application:

It is well settled that no appeal can be had from a refusal to issue or grant a writ of habeas corpus even after a hearing. However, the portion of that statement of law which we have emphasized can be confusing so, we will clarify it. In the cases which rely on that statement of law, the “hearing” which is being referred to is one which a court might hold in order to determine whether there is sufficient cause for the writ to be issued or whether the merits of the claim should be addressed. That type of hearing is not the same as one which is held to ultimately resolve the merits of an applicant’s claim. When a hearing is held on the merits of an applicant’s claim and the court subsequently rules on the merits of that claim, the loosing [sic] party may appeal.

Id. at 868 [footnote omitted]. In Hargett, the trial court held a hearing, refused to issue the writ, did so in an order that addressed the merits of each allegation in the writ application, and found each allegation to be without merit. Id.; see Ex parte Hargett, 827 S.W.2d 606, 607-08 (Tex.App.-Austin 1992, pet. refd) (op. on remand).

The majority misses the point of Hargett in two respects. First, the fact that the trial court here held a hearing on the writ application is not dispositive. Hargett, 819 S.W.2d at 868. I cannot state it any plainer than the Court of Criminal Appeals did. See id. Thus, Hargett provides no support for the majority’s assumption that the trial court must have ruled on the merits of Ernst’s application because it heard arguments, considered the case law, reviewed the briefs, and issued a ruling. The distinguishing feature in Hargett is that the trial court issued findings on the merits of the writ application, thereby evidencing its disposition of the writ, not that it held a hearing. Second, the fact that there was a written order in Hargett was significant because of what it said, not because it was in writing. If the trial court in Hargett had pronounced from the bench its findings on the merits, the result on appeal would have been the same. Because the trial court undertook to rule on the merits of the habeas corpus application, the court of criminal appeals held that the court of appeals had jurisdiction of the appeal even though the writ never issued. Hargett, 819 S.W.2d at 869; cf. Solomon v. State, 39 S.W.3d 704, 706-07 (Tex.App.-Corpus Christi 2001, no pet.) (finding jurisdiction over appeal where “the trial court issued the writ but denied relief’ on the merits). Here, however, the record contains no written or oral indication the trial court ruled on the merits of Ernst’s application for writ of habeas corpus.

Therefore, unlike the majority, I would not infer that the trial court’s docket entry here is comparable to the order in Hargett. The docket entry does not purport to rule on the merits of Ernst’s claims for habeas corpus relief. Without more, this meager record does not support any conclusion that the trial court’s denial was a ruling on the merits of Ernst’s application for writ of habeas corpus. The Hargett rule would not apply.

By analogy, my conclusion is underscored by what our disposition of the case would have to be if Ernst had appealed the trial court’s denial of his writ application. If he had done so, for us to address the merits of Ernst’s double-jeopardy claim in his writ application on this record would effectively convert what would be a direct appeal into an original habeas corpus proceeding. See Ex parte Miller, 931 S.W.2d 724, 725-26 (Tex.App.-Austin 1996, no pet.) (per curiam). However, we do not have original habeas corpus jurisdiction in criminal cases. See Tex.Code Crim. PROC. Ann. art. 11.05 (West 1977); see also Tex. Gov’t Code Ann. § 22.221(d) (West Supp.2004). The docket entry does not reflect that the trial court addressed the merits of Ernst’s writ application. If the trial court did not rule expressly on the merits of the writ application, it did not rule implicitly on the motion to dismiss. Thus, the majority’s expedient of construing the trial court’s disposition of the habeas proceeding as an implicit denial of Ernst’s pre-trial motion merely transforms an issue over which we would have no jurisdiction if it originally had been appealed into one that does not invoke our limited review power following Ernst’s negotiated guilty plea. The majority cannot get to where it wants to go from here.

I conclude that this record does not support Ernst’s attempt to reach our appellate review power. For the trial court’s disposition of the habeas proceeding to be the equivalent of a denial of Ernst’s motion to dismiss, the record first must show that the trial court denied Ernst’s application on the merits. It does not. Further, at least one court has held that a pre-trial habeas corpus proceeding is distinct from the case in which it arises and is not the same as a matter “raised by written motion and ruled on before trial.” Green v. State, 999 S.W.2d 474, 477 (Tex.App.-Fort Worth 1999, pet. refd); see Tex.R.App. P. 25.2(a)(2)(A).

Accordingly, I would hold that the record in this case does not support exercise of our limited power to review “matters raised by written motion filed and ruled on before trial.” See Tex.R.App. P. 25.2(a)(2)(A); see also Woods, 108 S.W.3d at 316 (holding that “the extra-notice recitations in the notice of appeal [under former rule 25.2(b)(3) ] must be true and supported by the record”). Moreover, even if I were willing to cross that bridge with the majority, I would not do so on a record that contains no written order but does contain the trial court’s CORTA certifying that Ernst has no right of appeal.

B. The Procedural Roadblock

A number of cases hold that a docket entry does not comprise an appealable written order. See Ex parte Wiley, 949 S.W.2d 3, 4 (Tex.App.-Fort Worth 1996, no pet.) (holding that trial court’s oral pronouncement and docket entry denying application for writ of habeas corpus and motion to dismiss was not appealable written order). “[T]he record, not the docket entry, is the authoritative evidence upon which the parties must rely on appeal.” Bell v. State, 734 S.W.2d 83, 84 (Tex.App.Austin 1987, no pet.) (refusing to presume from docket sheet entry noting complaint was filed that complaint was actually filed); see also Pifer v. State, 893 S.W.2d 109, 111 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (finding that docket entry reflecting trial court’s withdrawal of plea was not sufficient record of occurrence). I disagree that rule 33.1(c) “specifically provide[s] that a written order is not required to preserve a complaint for appeal,” as stated by the majority. It does not. Rule 33.1 eliminates the former practice of formally excepting to a court’s ruling or obtaining a written order in addition to the ruling. Tex.R.App. P. 33.1(c). However, I recognize, with the majority, that the current appellate rules afford appeal from implicit as well as explicit pre-trial rulings in criminal cases and arguably may be interpreted to mean that a written order is now unnecessary in some circumstances. See Tex.R.App. P. 33.1(a)(2)(A) (requiring for preservation of appellate complaints that trial court “ruled on the request, objection, or motion, either expressly or implicitly”); compare Tex.R.App. P. 25.2(a)(2)(A) (providing right to appeal in “plea bargain” cases “those matters that were raised by written motion filed and ruled on before trial”). Certainly, “[a] trial court’s ruling on a matter need not be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling.” Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App.1995). The ruling still must be discernible from the record. Id. A written order would be the clearest expression of what the trial court did in this case. The single word “denied” in a docket entry does not reflect that the trial court ruled on the merits of Ernst’s writ application. Compare Ex parte Brooks, 97 S.W.3d 639, 640 (Tex.App.-Waco 2002, no pet.) (“[T]he Court, after having carefully reviewed the Petition, hereby finds that the Petition is without merit, and after an examination of the Petition, it is manifest from the Petition itself that it is meritless, and the Court hereby denies the request for Writ of Habeas Corpus and finds that the party is entitled to no relief whatsoever.”). I would' not require a written order on the merits of Ernst’s writ application. I would, however, require an “unquestionable” expression of the trial court’s ruling in some form. See Rey, 897 S.W.2d at 336. The docket entry “denied” is the only expression of the trial court’s disposition of Ernst’s writ application in this record. Not to be deterred by a single word, the majority’s abatement order requires the construction of not just one but two bridges before arriving at our appellate review power: (1) the docket entry unquestionably expressed the trial court’s denial of Ernst’s writ application on the merits; and (2) the trial court’s express ruling on Ernst’s writ application is an implicit ruling on his motion to dismiss. A single ambiguous docket entry is slim scaffolding indeed to support such an exercise of our limited review power.

One of the options available to a trial court on the CORTA form promulgated by the Court of Criminal Appeals is to characterize the case as “a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal.” Here, however, the trial court rejected that option. Instead, it noted that the case “is a plea-bargain case, and the defendant has NO right of appeal.” Granted, a lot of water had flowed under the bridge by the time we first abated this case, almost a year ago, more than a year after the trial court honored Ernst’s plea agreement. Nevertheless, in light of this record, I would conclude that the trial court was in a better position than this Court to determine when it prepared the CORTA if it had ruled on the substantive merits of Ernst’s pre-trial motion to dismiss. See Willis v. State, 121 S.W.3d 400, 403 (Tex.Crim.App.2003) (addressing validity of pre-plea waiver of appeal); see also Iles v. State, 127 S.W.3d 347, 350 (Tex.App.-Houston [1st Dist.] 2004, no pet. h.) (same). I would not permit the docket entry to outweigh the CORTA.

IV. CONCLUSION

Accordingly, I would find that the record supports the trial court’s certification that Ernst has no right of appeal. See Tex.R.App. P. 25.2(d). I would conclude that exercise of our review power on this record would be error. See Woods, 108 S.W.3d at 316 (“We conclude that the Court of Appeals erred in considering appellant’s ineffective assistance allegations.”). No amendment of the CORTA is required to accurately reflect Ernst’s appellate rights. See Tex.R.App. P. 25.2(f), 37.1. Rather than abate this two-year-old case yet again, I would dismiss this appeal, not for want of jurisdiction, but for want of a CORTA certifying that Ernst has the right of appeal. See Tex.R.App. P. 25.2(d). This record presents nothing for this Court to review.

      . Until directed otherwise by the court of criminal appeals, I assume that the body of case law interpreting appellate rules governing how criminal appeals proceed applies to the current rules.

      . For recognition by our sister courts of appeals that a trial court's certification of no right of appeal must be supported by the record, see, e.g., Banda v. State, No. 01-03-00432-CR, 2004 WL 744593, at *1, 2004 Tex. App. LEXIS 3272, at ⅞2 (Tex.App.Houston [1st Dist.] April 8, 2004, no pet. h.) (per cu-riam) ("The trial court's certification of appellant's right to appeal states that this is a plea-bargained case and appellant has no right to appeal. The record supports the certification.”); Johnson v. State, No. 01-04-00202-CR, 2004 WL 744818, at *1, 2004 Tex.App.LEXIS 3284, at *1 *2 (Tex.App.-Houston [1st Dist.] April 8, 2004, no pet. h.) (per curiam) (same); Zavala v. State, No. 04-04—00042-CR, 2004 WL 730744, at *1, 2004 Tex.App. LEXIS 3097, at *1 (Tex.App.-San Antonio April 7, 2004, no pet. h.) (per curiam) ("The clerk’s record contains a written plea bargain, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant; therefore, the clerk's record supports the trial court’s certification that defendant has no right of appeal.”); Rodriguez v. State, No. 04-03-00204-CR, 2004 WL 57048, t *1, 2004 Tex.App. LEXIS 326, at *3 (Tex.App.-San Antonio Jan.14, 2004, no pet.) (per curiam) ("The clerk’s record does not contain a written motion ruled on before trial nor does it indicate the trial court granted Rodriguez permission to appeal. The trial court’s certification therefore appears to accurately reflect that this is a plea bargain case and Rodriguez does not have the right to appeal.”).

      . “A pre-trial diversion agreement is aptly named.” Fisher v. State, 832 S.W.2d 641, 643 (Tex.App.-Corpus Christi 1992, pet. ref’d). It refers to a written agreement the accused and the State enter into on or before the day of trial. Id. The State agrees to dismiss the case if the accused performs certain conditions within a specified period of time. Id. Both the State and the accused request that the trial court continue the present trial setting to a certain date in the future to give the accused time to comply with the agreed conditions. Id. The parties then present the agreement to the trial court for its approval. Id. If the trial court does not approve the agreement, the case proceeds to trial as scheduled on the docket. Id. at 643-44. If the trial court approves the agreement, it grants the joint request for continuance and resets the trial to a certain date in the future. Id. at 644. On that date, the accused must appear before the trial court. Id. If the accused has complied with the conditions of the agreement, the trial court grants the State’s motion to dismiss the pending criminal charges. Id. If the accused has not complied with the conditions of the agreement, the case proceeds to trial as scheduled. Id.

      . Of course, Ernst did not appeal from the denial of his writ application at the time. Further, I note that this appeal would have been untimely if Ernst had sought review of the trial court’s denial of his writ application as a direct appeal from the habeas corpus proceeding. See Tex.R.App. P. 26.2 and 26.3 (imposing deadlines for filing notice of appeal and motion for extension of time to file notice of appeal in criminal cases); see also Green v. State, 999 S.W.2d 474, 477 (Tex.App.-Fort Worth 1999, pet ref'd).


author: Justice CASTILLO.

text:
    Brian ERNST, Appellant, v. The STATE of Texas, Appellee.
    No. 13-02-273-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 17, 2005.

      Joseph V. Collina, Corpus Christi, for appellant.
    Carlos Valdez, Nueces County Dist. Atty., Douglas K. Norman, Asst. Dist. Atty., Corpus Christi, for appellee.
    Before Justices YÁÑEZ, CASTILLO, and GARZA.
   OPINION

Opinion by

Justice CASTILLO.

Appellant Brian Ernst appeals his conviction for indecency with a child. Ernst pleaded guilty pursuant to an agreed punishment recommendation. The trial court followed the recommendation and sentenced Ernst to three years in the Institutional Division of the Texas Department of Criminal Justice. This appeal ensued. Ernst filed a clerk’s record and reporter’s record. In three issues, he asserts: (1) his constitutional right not to be prosecuted twice for the same offense was violated when .the State re-indicted him for an alleged offense that was the subject of an expired pre-trial diversion agreement between Ernst and the State; (2) prosecution twice for the same alleged offense violated his due process rights; and (3) the State did not use due diligence in prosecuting Ernst for the alleged violation of his pretrial diversion contract.

The trial court certified that Ernst has no right to appeal because this is a plea-bargain case. Tex.RApp. P. 25.2(a)(2). The rule refers only to plea bargains with regard to guilty pleas. See Dears v. State, 154 S.W.3d 610, 613 (Tex.Cr.App.2005). In a plea-bargain case, as here, we review the record to determine: (1) our jurisdiction; and (2) whether the trial court’s certification is correct. See id. at 612-13; see also Greenwell v. Thirteenth Court of Appeals, No. AP-75,017, 159 S.W.3d 645, 648, 2005 WL 292418, at *2, 2005 Tex.Crim.App. LEXIS 217, at *7 (Feb. 9, 2005). “The purpose of the certification requirement is to efficiently sort appealable cases from non-appealable cases.” Greenwell, 159 S.W.3d at 649, 2005 WL 292418, at *2, 2005 Tex.Crim.App. LEXIS 217, at ⅞7. Certification allows appealable cases to move through the system unhindered while eliminating, at an early stage, the time and expense associated with non-appealable cases. Id. If there is something in whatever record does exist that indicates that an appellant has the right to appeal, we must determine whether the certification is deficient and resolve the conflict. See id. We must dismiss an appeal if a certification showing that the defendant has the right to appeal is not made part of the appellate record. See Dears, 154 S.W.3d at 613; see Tex.R.App. P. 25.2(d).

In this case, Ernst filed his appeal prior to the January 1, 2003 amendments to rule 25.2. Accordingly, he had filed a clerk’s record and a reporter’s record. In the record is a motion to dismiss. See Greenwell, 159 S.W.3d at 647, 2005 WL 292418, at *1, 2005 Tex.Crim.App. LEXIS 217, at *1. The trial court did not rule on the motion. See id.

We have reviewed the record, as Dears instructs. See Dears, 154 S.W.3d at 614-15. This is a plea-bargain case. Tex. R.App. P. 25.2(a)(2). Ernst pleaded guilty and the punishment did not exceed the punishment recommended by the prosecutor. See Greenwell, 159 S.W.3d at 647, 2005 WL 292418, at *1, 2005 Tex.Crim.App. LEXIS 217, at *2. There is no written motion ruled on before trial. See id. at -, 2005 WL 292418, at *1, 2005 Tex.Crim.App. LEXIS 217, at *1; see Tex.R.App. P. 25.2(a)(2)(A). The trial court did not give Ernst permission to appeal. See Tex.R.App. P. 25.2(a)(2)(B). We conclude that the trial court’s certification that Ernst does not have the right to appeal is correct. We vacate this Court’s order issued on May 26, 2004. Greenwell, 159 S.W.3d at 650, 2005 WL 292418, at *4, 2005 Tex.Crim.App. LEXIS 217, at *12. We dismiss the appeal. Tex.R.App. P. 25.2(d).

      . Tex. Pen.Code Ann. § 21.11(a)(2)(B) (Vernon 2003).

      . Rule 25.2 states, in part:
      (a) Rights to Appeal.
      (2) Of the Defendant. A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in which defendant’s plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-a defendant may appeal only:
      (A) those matters that were raised by written motion filed and ruled on before trial, or
      (B) after getting the trial court's permission to appeal.
      Tex.R.App. P. 25.2(a)(2)


author: Chief Justice VALDEZ.

text:
    In re Natividad ARRIOLA, et al.
    No. 13-03-376-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 8, 2004.

      Thomas J. Henry, Paul D. Andrews, Corpus Christi, Edwin L. McAninch, Houston, for relator.
    Carlos Villarreal, Richard C. Woolsey, Hermansen, McKibben, Woolsey & Villarreal, Corpus Christi, James Wilde, Richard A. Sheehy, Sheehy, Serpe & Ware, Houston, Jennifer H. Rogers, Marian J. Wu, Davis & Davis, Monte James, Richard D. Agnew, Austin, for real parties interest.
    Before the Court en banc.
   OPINION

Opinion by

Chief Justice VALDEZ.

In this proceeding, relators, the family and estate of Virginia Arriola, seek relief from three trial court orders that cumulatively barred relators from obtaining “protected health information, medical condition, care and treatment, and/or personal and clinical information of any Sunnybrook Health Care Center resident” other than Arriola without authorization from the resident. Relators contend: (1) any privilege or confidentiality attached to the information was waived by the real parties; (2) the circumstances of this case fall under the “litigation” and “abuse and neglect” exceptions to the Texas Rules of Evidence regarding physician-patient privilege and confidentiality of mental health information; and (3) one of the orders is overly broad. We conditionally grant the petition for writ of mandamus.

I. BACKGROUND

Relators brought suit against the real parties in interest, Sunnybrook Health Care Center (“Sunnybrook”) and others (“real parties”), contending Arriola suffered injuries from repeated falls at Sun-nybrook and was sexually assaulted by Gabriel Vela. At the time of the alleged incident, both Arriola and Vela were residents of Sunnybrook, a nursing home. Vela was also under psychiatric care.

Relators alleged the real parties had knowledge that Vela previously assaulted and engaged in nonconsensual sexual behavior with Sunnybrook staff members and other residents. Relators raised allegations of negligence, negligence per se, and gross negligence, among other claims.

During depositions of their employees, the real parties asserted claims of physician-patient privilege to nearly all questions pertaining to Vela. They also refused to produce documents pertaining to Vela. Relators filed a motion to compel discovery pertaining to Vela and for sanctions. In the motion, they contended Sunnybrook produced its records pertaining to Vela in another suit without objection. Yet, in the present suit, the real parties repeatedly invoked the physician-patient privilege and objected and refused to produce documents or allow any testimony concerning Vela’s conduct. Relators argued: (1) the prior disclosure of Vela’s records waived any claims of privilege or confidentiality; and (2) the facts of this case fall within two exceptions to the rules of evidence pertaining to physician-patient privilege and confidentiality of mental health information in civil cases. See Tex.R. Evid. 509, 510.

In the real parties’ response to this motion, they requested an order prohibiting relators from inquiring about the “protected health information, medical condition, care and treatment, or confidential communications [of] any Sunnybrook past or current residents other than Virginia Arri-ola.” The real parties contended various statutes mandated confidentiality and no exception to the privileges applied. Dr. Nestor Praderio and Psychiatric Consulting Services, P.A., two of the real parties, filed a separate motion for an order of protection from discovery requests regarding the care, treatment, and conduct of patients other than Arriola.

On May 27, 2003, the trial court granted Dr. Praderio and Psychiatric Consulting Services, P.A.’s motion for a protective order. On May 30, 2003, the trial court denied relators’ motion to compel discovery and for sanctions. And on June 6, 2003, the trial court entered an order prohibiting relators from:

inquiring of Defendants, Dr. Jaime Sandoval, and their current and former employees, representatives, or agents regarding the protected health information, medical condition, care and treatment, and/or personal and clinical information of any Sunnybrook Health Care Center resident, whether former or current, other than Virginia Arriola, unless [relators] provide an authorization from such resident.

Relators request a writ of mandamus requiring the trial judge to vacate the May 27, May 30, and June 6 orders and to grant relators’ motion to compel discovery.

II. ANALYSIS

A writ of mandamus will issue to correct a clear abuse of discretion by a lower court where no adequate remedy at law exists. In re CI Host, Inc., 92 S.W.3d 514, 516 (Tex.2002) (orig.proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). We first consider whether the trial court abused its discretion in issuing the three orders.

A. Abuse of Discretion

“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” Walker, 827 S.W.2d at 840. The trial court abuses its discretion when it clearly fails to correctly analyze or apply the law to the facts. Id.

1. Rules of Evidence

The Texas Rules of Evidence recognize the existence of the physician-patient privilege and the mental health information privilege. R.K. v. Ramirez, 887 S.W.2d 836, 839-40 (Tex.1994) (orig.proceeding); see Tex.R. Evid. 509, 510. Rule 509, which governs the physician-patient privilege, states in part:

In a civil proceeding:

(1) Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.

Tex.R. Evid. 509(c)(1), (2). Rule 510, which governs the confidentiality of mental health information in civil cases, states in part:

(1) Communication between a patient and a professional is confidential and shall not be disclosed in civil cases.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained by a professional are confidential and shall not be disclosed in civil cases.

Tex.R. Evid. 510(b)(1), (2).

These privileges serve two purposes. They encourage communication that is necessary for effective treatment and prevent unnecessary disclosure of highly-personal information. R.K., 887 S.W.2d at 840 (citing Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 107 (Tex.1985) (orig.proceeding) and Ex Parte Abell, 613 S.W.2d 255, 262 (Tex.1981) (orig.proceeding)).

These privileges, however, are not absolute. Id. They are subject to various exceptions. Id.; see Tex.R. Evid. 509(e), 510(d). Relevant to the case before us are the abuse-and-neglect exceptions to these rules. Rules 509 and 510 both contain an exception to privilege and confidentiality “in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident” of an “institution” as defined in section 242.002 of the health and safety code. Tex.R. Evid. 509(e)(7), 510(d)(6); see Tex. Health & Safety Code Ann. § 242.002 (Vernon 2001).

Here, the trial court’s orders, and particularly the June 6, 2003 order, broadly bar inquiry into the “protected health information, medical condition, care and treatment, and/or personal and clinical information” of any Sunnybrook resident other than Arriola without the resident’s approval. The broad bar includes information that is subject to the privileges defined in rules 509 and 510, such as communications between the patient and physician and records regarding the treatment of a patient.

However, the privileged information was sought in a case that falls squarely within the abuse-and-neglect exceptions to these rules. Relators alleged Arriola was the resident of a nursing home, which undis-putedly falls within the definition of “institution” as defined in section 242.002 of the health and safety code. Relators alleged Arriola suffered numerous falls as a result of the real parties’ neglect. Relators also alleged Arriola suffered abuse while a resident of the facility.

Relators sought to obtain and use Vela’s medical records and elicit testimony from the real parties’ employees about Vela. Relators needed this information to assist them in proving Sunnybrook was aware of previous instances of abuse by Vela, yet took no steps to protect Arriola from him. Not only are the proceedings about the abuse and neglect of a nursing facility resident, but the information sought also directly pertains to the allegations of abuse by Vela.

2. The Real Parties’ Contentions

The real parties contend the abuse-and-neglect exceptions do not apply here for several reasons. We conclude their arguments lack merit.

First, the real parties contend the abuse-and-neglect exceptions apply only to proceedings brought by appropriate law enforcement agencies. The real parties reach this conclusion by noting the similarity in language between these exceptions and the language in section 242.129 of the health and safety code. Tex. Health & Safety Code AlNN. § 242.129 (Vernon 2001). They contend that because section 242.129 pertains only to investigations into allegations of abuse and neglect by the Texas Department of Human Services or other designated agency, the abuse-and-neglect exceptions to rules 509 and 510 apply solely to investigations brought by those agencies.

However, the abuse-and-neglect exceptions to rules 509 and 510 contain no such limitation. The introductory language to all the exceptions listed in rules 509 and 510 state that the exceptions apply in administrative proceedings and civil proceedings in court. Tex.R. Evid. 509(e), 510(d). Moreover, the abuse-and-neglect exceptions themselves state that they apply to “any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an institution.” Tex.R. Evid. 509(e)(7), 510(d)(6) (emphasis added). The “proceeding” giving rise to the petition before us is a civil proceeding in court. Thus, the exceptions apply here.

Second, the real parties contend numerous state statutes and administrative rules protect the records and medical information from disclosure in this case. Several provisions of the health and safety code and human resources code prevent a nursing facility from releasing certain medical information pertaining to its residents. Tex. Health & Safety Code Ann. § 241.153 (Vernon 2001) (patient’s health care information may be released by the health care facility in only limited circumstances); Tex. Hum. Res.Code Ann. § 102.003© (Vernon 2001) (prohibiting a nursing facility from releasing a resident’s personal and clinical records); cf. Tex. Health & Safety Code Ann. § 242.501(a)(8) (Vernon Supp.2004) (directing Department of Human Services to adopt statement that resident has right to have information about resident in possession of institution maintained confidential). Title 40 of the administrative code also contains several provisions pertaining to the confidentiality of a nursing facility resident’s personal and clinical records. 40 Tex. Admin. Code § 19.407 (2003) (declaring nursing facility resident has right to privacy and confidentiality of personal and clinical records and can refuse release of records to persons outside facility), § 19.1910(d) (2003) (directing nursing facilities to keep confidential all information contained in resident’s records), § 19.1912(h) (2003) (directing nursing facilities to develop and maintain policies and procedures to safeguard the confidentiality of medical record information from unauthorized access).

In addition, the privileges enumerated in rules of evidence 509 and 510 also appear in the statutes. Chapter 611 of the health and safety code, which pertains to mental health records, protects from disclosure communications between a patient and a professional and records of the identity, diagnosis, evaluation, or treatment of a patient created or maintained by a professional. Tex. Health & Safety Code Ann. § 611.002 (Vernon 2003). Section 159.002 of the occupations code also protects from disclosure certain communications between a physician and a patient and records of the identity, diagnosis, evaluation, or treatment of a patient created or maintained by a physician. Tex. Ooc.Code Ann. § 159.002(a), (b) (Vernon 2004).

However, each of the confidentiality and privilege provisions cited by the real parties contains an exception to nondisclosure where release of the information is required by law or ordered by the court. See Tex. Health & Safety Code Ann. § 241.153(19) (allowing disclosure of a patient’s health care information to comply with a court order), § 611.006(a)(ll) (Vernon 2003) (allowing disclosure of confidential mental health communications and records in judicial proceeding where the court has issued order); Tex. Hum. Res.Code Ann. § 102.003©(2) (allowing release of elderly individual’s personal and clinical records where release is required by another law); Tex. Ooc.Code Ann. § 169.003(a)(12) (Vernon 2004) (allowing disclosure of privileged communications or records to a court or party to an action if pursuant to a court order); 40 Tex. Admin. Code § 19.407(3)(B) (providing that resident’s right to refuse release of personal and clinical records does not apply where release is required by law), § 19.1910(d)(2) (stating exception to confidentiality of a resident’s records exists when release is required by law), § 19.1912(h)(2) (stating nursing facility must allow access to or release of confidential medical information under court order).

Here, the rules of evidence are the “law” that requires release of the information. See In re City of Georgetown, 53 S.W.3d 328, 332 (Tex.2001) (orig.proceeding) (stating that commonly understood meaning of “law” includes rules of evidence). To the extent that the information falls within the scope of rules of evidence 509 and 510, it is subject to the abuse-and-neglect exceptions to nondisclosure. The statutes and rules cited by the real parties do not prevent disclosure here. Thus, instead of barring discovery on this matter, the trial court should have granted relators’ motion to compel.

Third, the real parties contend we resolved this issue in favor of nondisclosure in In re Diversicare General Partner, Inc., 41 S.W.3d 788 (Tex.App.-Corpus Christi 2001, orig. proceeding). The facts in Diversicare are similar to those presented here. In that case, the real parties sued relators, a nursing home and other parties, for the sexual assault of a female resident of the nursing home, which was committed by a male resident of the same facility. Id. at 791. The real parties sought the personal and clinical records of the male resident, and the trial court ordered production of the records. Id.

On petition for writ of mandamus in Diversicare, we reviewed the various provisions of the health and safety code, the human resource code, and the administrative code that require nursing facilities to keep certain records and information about their residents confidential. Id. at 792-93. We found that, under the statutes and administrative rules cited and discussed by the parties, the trial court did not have authority to order the disclosure of certain medical information about the male resident. Id. at 793. The parties, however, did not reference the rules of evidence. Based on the parties’ arguments, we concluded that the trial court had abused its discretion; and, on that basis, we granted relief to prevent the court-ordered disclosure. Id. at 796.

Although the rules of evidence were not raised by either party in Diversicare, had they been raised, the result most likely would have been different. To the extent our decision in Diversicare can be read as inconsistent with our analysis in this case, we overrule Diversicare. Accordingly, re-lators’ reliance on Diversicare in support of its position in this case is misplaced.

In the present case, we conclude the trial court abused its discretion when it failed to correctly apply the law to the facts before it because its orders improperly barred discovery of information that is exempt from claims of privilege and confidentiality under rules of evidence 509 and 510. See Walker, 827 S.W.2d at 840 (clear failure by trial court to analyze or apply law correctly constitutes abuse of discretion). We now turn to the question of whether an adequate remedy at law exists.

B. No Adequate Remedy at Law

No adequate remedy at law exists where the trial court’s discovery error vitiates or severely compromises a party’s ability to present a viable claim or defense. Walker, 827 S.W.2d at 843. Appellate remedy may be inadequate where a denial of discovery “go[es] to the heart of a party’s case.” Id.

Here, the relators’ claims against the real parties in connection with the assault by Vela are based on the real parties’ knowledge of previous assaults committed by Vela against other residents and staff. The trial court’s orders, in effect, barred any inquiry into the real parties’ knowledge of Vela’s prior conduct while a resident of Sunnybrook.

Although counsel for relators had obtained Sunnybrook’s records on Vela in another lawsuit, the trial court “sealed” these records during the hearing that gave rise to the orders at issue here. The court instructed relators not to show the records to anyone or ask any witness about them. The trial court’s orders compromised rela-tors’ ability to present their claims. Accordingly, we find no adequate remedy at law exists.

III. CONCLUSION

Because we conclude the trial court abused its discretion and no adequate remedy at law exists, we need not address relators’ remaining contentions. See Tex.R.App. P. 47.1. We note that our decision here does not allow or encourage unfettered discovery of information about Sun-nybrook residents. We urge the trial court to keep in mind the supreme court’s caution in R.K.:

We stress that the highly personal nature of this information places a heavy responsibility on the trial court to prevent any disclosure that is broader than necessary.... Trial courts must use great care when permitting discovery of such sensitive information....

R.K., 887 S.W.2d at 844 (citations omitted). Furthermore, even when a document contains some information to which the 509(e)(7) and 510(d)(6) exceptions apply, any information in the document not meeting that standard remains privileged and must be redacted. In re Whiteley, 79 S.W.3d 729, 733-34 (Tex.App.-Corpus Christi 2002, orig. proceeding).

We conditionally grant relators’ petition for writ of mandamus. We order the trial court to vacate the three orders limiting discovery and to grant relators’ motion to compel discovery pertaining to Vela. Mandamus will issue only if the trial court fails to do so.

      . The real parties in interest are Sunnybrook Healthcare Center; HP/Sunnybrook, Inc.; HP/Sunnybrook, Inc. d/b/a Sunnybrook Health Care Center; Sunnybrook Health Care and Rehabilitation Center; Healthprime, Inc.; HP/Management Services, Inc.; HP/Management Group, Inc.; Healthprime/HCC, Inc.; HP/Operations Group, Inc. d/b/a Sunnybrook Health Care Center; HP/Operations Group, Inc.; HP/Sunnybrook of Texas, Inc.; HP/Corpus Christi, Inc.; Eduardo A. Duarte, ADMN; Kenneth Green, ADMN; Sylvia Peoples, R.N.; Jaime David Sandoval, M.D.; Nestor H. Prad-eño, M.D.; Psychiatric Consulting Services, P.A.; HP/Properties, Inc.; HP/Ancillaries, Inc.; Healthlink Services, L.L.C.; HP/West-moreland, Inc.; HP/Hyde, Inc.; HP/Sunny-brook, Inc. f/k/a Sunnybrook Health Care Center; and HP/Sunnybrook of Texas, Inc. d/b/a Sunnybrook Health Care and Rehabilitation Center.

      . Both Arriola and Vela are now deceased.

      . Section 242.002 of the health and safety code defines "institution,” in part, as:
      an establishment that:
      (i) furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; and
      (ii) provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or other services that meet some need beyond the basic provision of food, shelter, and laundry.
      Tex. Health & Safety Code Ann. § 242.002(6), (10)(A) (Vernon 2001). The parties do not dispute that Sunnybrook is an institution as defined in this statute. In addition, the pleadings and other documents submitted to this Court indicate Sunnybrook is an institution. See id. The pleadings refer to Sunnybrook as a nursing home. Other documents indicate the home had multiple residents that received food and shelter and were under the care or treatment of a physician. There is no indication that residents of the home were related to the proprietors of Sunnybrook.

      . Section 242.129 states: "In a proceeding regarding the abuse or neglect of a resident or the cause of any abuse or neglect, evidence may not be excluded on the ground of privileged communication except in the case of a communication between an attorney and client.” Tex. Health & Safety Code Ann. § 242.129 (Vernon 2001).

      . The real parties also contend the records and information sought are protected from disclosure under federal law. However, the real parties cite to a statute and a regulation containing only definitions. See 42 U.S.C. § 1320d (2003); 45 C.F.R. § 164.501 (2003). They cite to no authority preventing the disclosure of the information sought here. For this reason, we do not consider this argument. See Tex.R.App. P. 52.3(h), 52.4.

      . Section 611.006(a)(8) also contains an exception to the confidentiality rule that is similar to the abuse-and-neglect exception of rule 510:
      (a) a professional may disclose confidential information in:

      (8) a judicial or administrative proceeding regarding abuse or neglect, or the cause of abuse or neglect, of a resident of an institution, as that term is defined by Chapter 242.
      Tex Health & Safety Code Ann. § 611.006(a)(8) (Vernon 2003).