William David Abraham v. State ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
WILLIAM DAVID ABRAHAM, § No. 08-13-00200-CR
Appellant, § Appeal from the
v. § 384th District Court
THE STATE OF TEXAS, § of El Paso County, Texas
State. § (TC# 20110D03483)
§
ORDER
Pending before the Court is Appellant’s motion to order the trial court to amend the trial
court certification. The trial court certification states that Appellant waived the right to appeal,
but the record does not contain a written waiver executed by Appellant, and the record does not
otherwise reflect that Appellant waived his right to appeal. Further, the record reflects that this
was not a plea bargain case, Appellant gave oral notice of his intent to appeal following
sentencing, and the trial court placed Appellant on an appeal bond pending the appeal.
An appellate court has a duty to review the record to ascertain whether the trial court’s
certification properly reflects the proceedings below. Sherwood v. State, 340 S.W.3d 929, 932
(Tex.App.--El Paso 2011, no pet.) (citing Dears v. State, 154 S.W.3d 610, 614-15 (
Tex.Crim.App. 2005)). A certification is defective if it is correct in form but, when compared
with the record before the court, proves to be inaccurate. Dears, 154 S.W.3d at 614.
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We conclude that the trial court’s certification of the right to appeal is defective and must
be corrected. Accordingly, we GRANT Appellant’s motion and order the trial court to execute
an amended certification of Appellant’s right to appeal. The trial court is instructed to certify
that this is not a plea bargain case and the defendant has the right of appeal. The amended
certification shall be filed with the trial court clerk no later than May 19, 2014. The trial court
clerk shall prepare a supplemental clerk’s record containing the amended certification and file it
with this Court within ten days after the amended certification is filed with the trial court clerk.
IT IS SO ORDERED this 5th day of May, 2014.
PER CURIAM
Before McClure, C.J., Rivera and Rodriguez, JJ.
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