Mark Carroll Davis v. State ( 2006 )

NO. 07-06-0202-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 14, 2006

______________________________ MARK CARROLL DAVIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 251^ST DISTRICT COURT OF RANDALL COUNTY;

NO. 16,772-C; HONORABLE PATRICK PIRTLE, JUDGE _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Mark Carroll Davis appeals from his conviction of delivery of a controlled substance. The certification of appellant's right to appeal executed by the trial court states appellant has no right of appeal because his conviction was the result of a plea bargain and appellant waived the right of appeal. By letter dated May 16, 2006 this court informed appellant that Rule of Appellate Procedure 32.2 required him to file a docketing statement, giving him ten days to do so. On May 22, we notified appellant that the certification filed by the trial court indicates he has no right to appeal, inviting a response to that certification by June 6, 2006. No response to either letter has been received and the clerk's record has not been filed.

Rule of Appellate Procedure 25.2(d) requires dismissal of an appeal from a criminal conviction in the absence of a certification showing the defendant's right of appeal. Dismissal is not required if the certification is defective. Dears v. State, 154 S.W.3d 610, 613 (Tex.Crim.App. 2005). Under the holding in Dears, an appellate court is not required to wait until the clerk's record is filed to determine if dismissal is required under Rule 25.2(d). Dears, 154 S.W.3d at 614-15. Having received no reply to either of our requests to appellant, nothing before the court indicates the trial court's certification is defective.

Accordingly, the appeal is dismissed.

James T. Campbell

Justice

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04167in">          Appellant, Natalie Garcia, appeals her conviction and sentence for the offense of driving while intoxicated. Because of conflicting trial court certifications filed in this cause, we abate and remand to the trial court for clarification.

Background   

          Appellant was charged with the offense of driving while intoxicated. From the trial court clerk’s record and the court reporter’s record, both filed with this court, it appears that appellant had a jury trial on March 12-13, 2008, in which the jury found appellant guilty of the offense. The trial court ordered a presentence investigation report and continued the case until April 10. On April 10th, the trial court held a punishment hearing and sentenced appellant. The trial court clerk’s record contains two trial court certifications of appellant’s right to appeal, both file-marked on April 11, 2008. The first certification dated March 12, 2008, certifies that the criminal case is not a plea-bargain case, and that appellant has the right to appeal. The second certification dated April 10, 2008 certifies that the criminal case is a plea-bargain case and that appellant has no rights of appeal.

          According to Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure, the trial court is required to enter a certification of a defendant’s right to appeal. Tex. R. App. P. 25.2(a)(2). A certification that does not comport to the record may be considered defective. Dears v. State, 154 S.W.3d 610, 613 (Tex.Crim.App. 2005). If the appellate court determines that the certification is defective, the clerk must notify the parties so that the defect can be remedied. Id. An appellate court has the ability to examine a certification for defectiveness, and to use Rules 37.1 and 34.5(c) to obtain another certification, whenever appropriate. Id. at 614. Although an appellate court may require a trial court to certify whether appellant has the right to appeal, the appellate court may not dictate the contents of the certification. Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 650 n.24 (Tex.Crim.App. 2005).

          In this matter, we are faced with two conflicting certifications with the latest certification concluding that appellant has no rights of appeal. By our examination of the record, the second certification does not comport to the record and is, thus, defective. Dears, 154 S.W.3d at 613. We therefore, abate and remand this matter to the trial court.

          Upon remand, the trial court shall immediately cause notice of a hearing to be given, if necessary, and, thereafter conduct a hearing to determine if appellant has the right of appeal. The trial court shall execute a certification of appellant’s right of appeal and findings of fact and conclusions of law regarding the aforementioned issue and cause its findings and conclusions to be included in a supplemental clerk's record. Tex. R. App. P. 34.5(c). A supplemental record of the hearing, if held, shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by June 27, 2008.

          It is so ordered.

                                                                           Per Curiam

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