Julian Montoya v. State ( 2011 )

NO. 07-11-00428-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 22, 2011
JULIAN MONTOYA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-428,623; HONORABLE JOHN J. "TREY" MCCLENDON, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER OF ABATEMENT AND REMAND
Following entry of a judicial confession, appellant, Julian Montoya, appears to
have been convicted of driving while intoxicated, third offense or more, and sentenced
to six years incarceration in the Texas Department of Criminal Justice, Institutional
Division. However, it also appears that appellant has been released from custody on an
appeal bond. The clerk=s record was filed on December 19, 2011.
Review of the clerk’s record reveals that it does not include a Judgment or other
appealable order nor does it contain a Certification of Defendant’s Right of Appeal. The
clerk’s record does contain Written Admonishments on Open Plea and Waiver of
Constitutional Rights, Agreement to Stipulate, and Judicial Confession which are signed
by the judge, appellant, and appellant’s trial counsel. These undated documents were
filed by the clerk on March 24, 2011. An undated Bench Order, filed by the clerk on
September 19, was issued by the trial court that indicates that appellant was sentenced
to six years incarceration, but that a $7,500 appeal bond was assessed. The clerk’s
record includes documents placing conditions on appellant’s bond that were signed on
September 16. Then, on October 17, the trial court signed an Order Placing Defendant
on Pre-Trial Supervision. Consequently, the contents of the clerk’s record prevent this
Court from being able to assess whether a final, appealable judgment or order has been
entered against appellant in this cause. To clarify the uncertainty regarding whether this
appeal is ripe for review, we now abate the appeal and remand to the trial court.
Upon remand, we direct the trial court to either enter a final, appealable judgment
or order or enter findings of fact and conclusions of law regarding the status of this
cause. If the trial court enters judgment or final order, that court is directed to ensure
that it is included in a supplemental clerk’s record that is filed with the Clerk of this Court
on or before January 20, 2012. If the trial court enters findings of fact and conclusions
of law regarding the status of this cause, that court is directed to ensure that those
findings and conclusions are included in a supplemental clerk’s record that is filed with
the Clerk of this Court on or before January 20, 2012.
Additionally, the Texas Rules of Appellate Procedure require that a trial court
shall enter a Certification of Defendant=s Right of Appeal, that is signed by the
defendant and a copy given to him, each time it enters a judgment of guilt or other
2
appealable order. TEX. R. APP. P. 25.2(a)(2), (d); Hargesheimer v. State, 182 S.W.3d
906, 911 (Tex.Crim.App. 2006). This certification must include a notice that the
defendant has been informed of his rights concerning appeal, as well as his right to file
a pro se petition for discretionary review.1 An appeal must be dismissed if the
certification has not been made part of the record under the applicable rules. TEX. R.
APP. P. 25.2(d).
Thus, in the event that the trial court enters judgment in the above-identified
cause, Rule 25.2 further requires the trial court to enter a Certification of Defendant’s
Right of Appeal at the same time. Therefore, the trial court is further directed, in the
event that it elects to enter judgment in this cause, to utilize whatever means necessary
to secure a Certification of Defendant=s Right of Appeal that complies with Rule 25.2(d).
Once properly executed, the certification shall be included in the supplemental clerk=s
record containing the trial court’s judgment and filed with the Clerk of this Court on or
before January 20, 2012.
It is so ordered.
Per Curiam
Do not publish.
1
The proper form for Certification of Defendant=s Right of Appeal is contained in
Appendix D of the 2008 Texas Rules of Appellate Procedure.
3