Jacob Joseph Hernandez v. State ( 2012 )

RECEIVED
RT OF APP...,AL5
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Jacob Joseph Hernandez v. The State of Texas
Appellate case number: 01-12-00721-CR
Trial court case number: 1256018
Trial court: 263rd District Court of Harris County
The Clerk of the Court has examined the clerk’s record and has found that it does not
comport with the Texas Rules of Appellate Procedure in that it does not include a copy of the
trial court’s certification of appellant’s right of appeal that corresponds to the trial court’s July
19, 2012 judgment.1 See TEX. R. APP. P. 25.2(a)(2), (d), 34.5(a)(12).
Consequently, we abate the appeal and remand the cause to the trial court for further
proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a
proper Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d).2 See TEX.
1 The record does contain a Certification of Defendant’s Right of Appeal, but it is dated
April 25, 2011 and only applies to appellant’s plea of April 25, 2011, which resulted in
the trial court’s June 10, 2011 judgment placing appellant on community supervision.
See TEX. R. APP. P. 25.2(a)(2) (requiring trial court to enter certification each time it
enters judgment or appealable order); Hargesheimer v. State, 182 S.W.3d 906, 912, 913
(Tex. Crim. App. 2006). The record therefore does not contain a certification that
pertains to the trial court’s July 19, 2012 judgment adjudicating appellant’s guilt.
2 Although the July 19, 2012 judgment states "appeal waived," the record does not support
any waiver of the right to appeal, as the reporter’s record does not reflect an oral waiver
after appellant was sentenced and the clerk’s record contains no documents establishing a
bargained-for waiver. See Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App.
2009); Ex parte Delaney, 207 S.W.3d 794, 799-800 (Tex. Crim. App. 2006); Monreal v.
State, 99 S.W.3d 615,616 (Tex. Crim. App. 2003). Accordingly, the certification should
either state that this ~s not a plea-bargain case and appellant has the fight of appeal or
should state that appellant has waived the right to appeal and the record should be
supplemented with supporting documentation. See Hargesheimer, 182 S.W.3d at 913,
Dears v. State, 154 S.W.3d 610, 613,614--15 (Tex. Crim. App. 2005).
R. APP. P. 25.2(d). Once properly completed and executed, the certification shall be included in
a supplemental clerk’s record. See TEX. R. APP. P. 34.5(c)(2). The trial court shall cause the
supplemental clerk’s record to be filed with the Clerk of this Court no later than 20 days from the
date of this order. See id This order constitutes notice to all parties of the defective certification.
See TEX. R. APP. P. 37.1.
It is so ORDERED. 1
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