Kaylen Dewayne Simmons v. State ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Kaylen Dewayne Simmons v. The State of Texas
Appellate case number: 01-13-00930-CR
Trial court case number: 12-CR-2519
Trial court: 212th District Court of Galveston County
Although the record reflects that the appellant has the right to appeal the denial of his
motion to suppress, the trial court’s certification indicates that appellant both has the right of
appeal and has waived the right of appeal. The Rules of Appellate Procedure require that a
certification from the trial court of the appellant’s right to appeal be filed in every criminal case
in which the trial court enters a judgment or other appealable order. See TEX. R. APP. P.
25.2(a)(2); Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (appellate court has
ability to examine a certification for defectiveness and obtain another certification whenever
appropriate).
Accordingly, we abate this appeal and remove it from this Court’s active docket so that a
certification showing that appellant has the right to appeal may be executed.
We direct the trial court to conduct a hearing at which a representative of the Galveston
County District Attorney’s Office and appellant’s counsel, Joseph Willie, shall be present.
Appellant shall also be present for the hearing in person, or he may appear by closed video
teleconference.1
At the hearing, the trial court shall complete a certification of the appellant’s right to
appeal. The certification must be signed by the trial court, appellant, and appellant’s counsel. If
appellant appears by video teleconference, appellant’s signature on the certification may be
obtained by mailing the certification to appellant following the hearing.
1 Any such teleconference must use a closed-circuit video teleconferencing system that
provides for a simultaneous compressed full motion video and interactive communication
of image and sound between the trial court, appellant, and any attorneys representing the
State or appellant. On request, appellant and his counsel shall be able to communicate
privately without being recorded or heard by the trial court or the attorney representing
the State.
A supplemental clerk’s record containing the completed certification of appellant’s right
to appeal shall be filed with the Clerk of this Court within 30 days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record is filed in this Court. The court coordinator of the trial court shall set a
hearing date and notify the parties of such date.
It is so ORDERED.
Judge’s signature: /s/ Rebeca Huddle
 Acting individually  Acting for the Court
Date: September 18, 2014