Somer Rachelle Nesloney v. the State of Texas

NUMBER 13-22-00006-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SOMER RACHELLE NESLONEY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of Aransas County, Texas.
SUPPLEMENTAL ORDER OF ABATEMENT
Before Justices Longoria, Hinojosa, and Silva
Order Per Curiam
By order issued on April 27, 2022, this Court abated this matter and remanded it
to the trial court. We had previously notified appellant’s counsel that it appeared that the
record might fail to contain an appealable order and requested correction of the defect, if
any, but appellant’s counsel failed to respond. We directed the trial court to use whatever
means necessary to make appropriate findings and recommendations concerning the
following: (1) whether appellant desired to prosecute this appeal; (2) why appellant’s
counsel failed to file a response regarding the defect in the notice of appeal and whether
counsel had effectively abandoned the appeal; (3) whether appellant had been denied
effective assistance of counsel; (4) whether appellant’s counsel should be removed; and
(5) whether appellant was indigent and entitled to court-appointed counsel. We directed
the trial court to cause its findings and recommendations, together with any orders it may
enter regarding the aforementioned issues, to be filed in a supplemental clerk’s record,
and directed the trial court to cause a supplemental reporter’s record of any proceedings
to be prepared.
We have now received the trial court’s findings and conclusions, which appear to
have been made without notice or hearing. The trial court concluded, simply, that
appellant did not have the right to appeal and its certification of the right to appeal was
incorrect. The trial court’s order did not reference any applicable law or statute in its
findings and conclusions and did not address the matters that we identified in our order.
Additionally, upon review of the trial court’s findings and conclusions, we have
determined the trial court’s certification of appellant’s right of appeal may be incorrect or
otherwise defective. See Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App. 2005);
see Tex. R. App. P. 34.5(c); 37.1. A defective certification includes a certification that is
correct in form, but, when compared with the record before the court, proves to be
inaccurate. Dears, 154 S.W.3d at 614.
Accordingly, we continue the abatement of this matter. We direct the trial court to
provide notice and hold a hearing regarding each of the aforementioned matters and shall
issue findings and conclusions clearly identifying: (1) whether appellant desired to
prosecute this appeal; (2) why appellant’s counsel failed to file a response regarding the
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defect in the notice of appeal and whether counsel had effectively abandoned the appeal;
(3) whether appellant had been denied effective assistance of counsel; (4) whether
appellant’s counsel should be removed; (5) whether appellant was indigent and entitled
to court-appointed counsel; (6) whether the trial court’s certification of appealability is
correct; and (7) whether the appellant has the right of appeal. See Manuel v. State, 994
S.W.2d 658, 661–62 (Tex. Crim. App. 1999).
The trial court’s findings and conclusions, amended certification, if any, and any
orders it enters shall be included in a supplemental clerk’s record. A supplemental clerk’s
record and a supplemental reporter’s record regarding these proceedings on remand
shall be filed with the Clerk of this Court on or before the expiration of thirty days from the
date of this order.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
15th day of July, 2022.
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