Ashley Stokes v. State

NO. 07-08-0457-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 27, 2009
______________________________
ASHLEY MCCALL STOKES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;
NO. 121,944; HONORABLE W. F. “CORKY” ROBERTS, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON ABATEMENT AND REMAND
Following a plea of guilty to the offense of driving while intoxicated appellant, Ashley
McCall Stokes, was sentenced to confinement in the county jail for 120 days and was fined
$500. The jail sentence was then probated for 18 months. The clerk’s record was filed on
December 15, 2008.
Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter
a Certification of Defendant’s Right of Appeal each time it enters a judgment of guilt or
other appealable order. TEX . R. APP. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d
906, 911 (Tex.Crim.App. 2006). 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). An
appellate court that has an appellate record that includes a certification is obligated to
review the record to ascertain whether the certification is defective. Dears v. State, 154
S.W.3d 610, 615 (Tex.Crim.App. 2005).
Pursuant to an amendment to Rule 25.2(d), which became effective on September
1, 2007, the certification of defendant’s right of appeal must be signed by the defendant
and a copy must be given to her. TEX . R. APP. P. 25.2(d). Additionally, the certification
shall include a notice that the defendant has been informed of her rights concerning
appeal, as well as her right to file a pro se petition for discretionary review.1
The clerk’s record does not contain a certification of appellant’s right to appeal.
Furthermore, it does not reflect whether a copy of the certification was given to the
defendant nor does it indicate whether the defendant was given the required
admonishments. Furthermore, our letter of December 17, 2008, directed the trial court to
file a certification within 30 days. Additionally, our letter directed the trial court clerk to file
a supplemental record containing the certification within 15 days from the date the
certification was filed. To date, this court has not received a supplemental clerk’s record
containing a properly executed certification. See TEX . R. APP. P. 34.5(c)(1).
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.
2
Consequently, we abate this appeal and remand the cause to the trial court for
further proceedings. See TEX . R. APP. P. 34.5(c)(2). Upon remand, the trial court shall
utilize whatever means necessary to secure a Certification of Defendant’s Right of Appeal
in compliance with Rule 25.2(d). Once properly executed, the certification shall be
included in a supplemental clerk’s record and filed with the Clerk of this Court on or before
March 16, 2009. Id.
This order constitutes notice to all parties of the defective certification pursuant to
Rule 37.1 of the Texas Rules of Appellate Procedure. See TEX . R. APP. P. 37.1. If a
supplemental clerk’s record containing a proper certification is not filed in accordance with
this order, this matter will be referred to the Court for dismissal. See TEX . R. APP. P.
25.2(d).
It is so ordered.
Per Curiam
Do not publish.
3