Ex Parte John Timothy Brantley ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00262-CR
EX PARTE JOHN TIMOTHY BRANTLEY
From the County Court at Law
Walker County, Texas
Trial Court No. 16-0339A
ORDER
On August 8, 2016, John Timothy Brantley filed a notice of appeal challenging the
trial court’s August 1, 2016 denial of his application for writ of habeas corpus. On
September 1, 2016, we informed Appellant, the trial court, and the trial court clerk that
the record does not contain a certification of his right of appeal and requested that the
certification to be filed in a Supplemental Clerk’s Record within thirty days. This Court
has not received the certification of Appellant’s right to appeal.
Texas Rule of Appellate Procedure 25.2(d) provides that:
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). The
certification shall include a notice that the defendant has been informed of
[her] rights concerning an appeal, as well as any right to file a pro se petition
for discretionary review. This notification shall be signed by the defendant,
with a copy given to him. The certification should be part of the record
when notice is filed, but may be added by timely amendment or
supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order
of the appellate court under Rule 34.5(c)(2).
TEX. R. APP P. 25.2(d) (emphasis added).
Pursuant to Cortez v. State, under Rule of Appellate Procedure 37.1, if the trial-
court clerk does not file the certification after notice from the appellate clerk, as was the
case here, the appellate clerk "must refer the matter to the appellate court, which will
make an appropriate order under this rule or Rule 34.5(c)(2)." Cortez v. State, 420 S.W.3d
803, 807 (Tex. Crim. App. 2013). Consequently, we abate the appeal and remand the cause
to the trial court for further proceedings. On remand, the trial court may utilize whatever
means its finds necessary to secure and file with this Court a certificate of right of appeal
that complies with Rule 25.2(d), including the requirement that it indicate appellant’s
appellate rights and that it be signed by appellant. See TEX. R. APP. P. 25.2(d). Once
properly completed and executed, the certification shall be included in a Supplemental
Clerk’s Record. See id. at R. 34.5(a)(12). The trial court shall cause the Supplemental
Clerk’s Record to be filed with the Clerk of this Court within forty-two days of the date
of this order.
PER CURIAM
Ex parte Brantley Page 2
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed December 7, 2016
Do not publish
[CR25]
Ex parte Brantley Page 3