Jeffery Allen Whitfield v. the State of Texas ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00170-CR
Jeffery Allen Whitfield, Appellant
v.
The State of Texas, Appellee
FROM THE 27TH DISTRICT COURT OF BELL COUNTY
NO. 63048, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
O R D E R A ND M E M O R A N D U M O P I N I O N
PER CURIAM
Appellant Jeffery Allen Whitfield seeks appellate review of the trial court’s order
denying his pro se motion for post-conviction DNA testing under Chapter 64 of the Texas Code
of Criminal Procedure. See Tex. Code Crim. Proc. arts. 64.01-.05.
The appellate rules require the trial court to certify 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). In
this case, the trial-court certification states, in a hand-written notation, that “no order exists upon
which an appeal may be predicated” and was signed by the trial court on April 6, 2020. Included
with the trial-court certification is a copy of the trial court’s “findings of fact and order denying
[Whitfield’s] post-conviction for DNA testing,” signed by the trial court on February 2, 2021.
Because an order denying a motion for post-conviction DNA testing is an appealable order,
see Tex. Code Crim. Proc. art. 64.05, the certification does not accurately reflect appellant’s
right of appeal and, as a result, is defective. Dears v. State, 154 S.W.3d 610, 614 (Tex.
Crim. App. 2005) (explaining that appellate court is required “to examine a certification for
defectiveness and to use [Rules 37.1 and 34.5(c) of Rules of Appellate Procedure] to obtain
another certification, whenever appropriate”).
Accordingly, we abate this appeal and remand the cause to the trial court for entry
of an amended certification that accurately reflects appellant’s right of appeal in this Chapter 64
proceeding. See Tex. R. App. P. 37.1; Dears, 154 S.W.3d at 614. Once entered, the amended
certification shall be included in a clerk’s record and filed with this Court no later than May 28,
2021. See Tex. R. App. P. 35.3 (trial court clerk is responsible for preparing, certifying, and
timely filing clerk’s record).
It is so ordered on May 5, 2021.
Before Justices Goodwin, Triana, and Kelly
Abated and Remanded
Filed: May 5, 2021
Do Not Publish
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