Opinion
NO. 14-17-00722-CR
01-23-2018
DAMON KENDRICK DOVE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Cause No. 12-DCR-061181A
ABATEMENT ORDER
On July 21, 2017, appellant's motion for DNA testing was filed. See Tex. Code Crim. Proc. Ann. art. 64.03. The trial judge denied the motion on August 1, 2017, by writing "Denied, 8/1/17" on the first page of the motion and signing his name. Appellant timely appealed with a notice of appeal dated August 24, 2017 and filed on September 8, 2017. Id. art. 64.05.
The clerk's record was filed on September 28, 2017, but did not contain a certification of appellant's right to appeal. We sent letters to the trial judge on October 23, 2017, December 1, 2017, and January 4, 2018, stating that the certification was missing and asking him to have a signed certification filed in a supplemental clerk's record.
On January 10, 2018, a fourth supplemental clerk's record was filed containing a statement signed by the trial judge and dated November 7, 2017. The statement indicates the judge believes we are asking for a certification of the right to appeal from the judgment of conviction signed after the defendant's trial in July 2013. The judge correctly notes that such certification was signed and became part of the appellate record in No. 14-13-00686-CR, Dove v. State, an appeal that is long concluded. The judge also wrote:
Various pro se motions have been filed by Dove which have been denied without hearing including a recent notice of appeal without designation as to the [issues] being appealed. This Court has not and will not issue a right of appeal certificate on these matters.(Boldface added.)
The trial judge is correct that the notice of appeal dated August 24, 2017 does not specify the order being appealed. Due to its proximity in time to the trial court's August 1, 2017 ruling, this court construes the notice of appeal as challenging the denial of appellant's DNA motion. Such an appeal is statutorily authorized. Tex. Code Crim. Proc. Ann. art. 64.05.
An appeal must be dismissed if a certification showing that the defendant has the right of appeal has not been made part of the record. Tex. R. App. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). However, before we may dismiss the appeal, we must first abate the appeal and order the trial court to provide the missing certification. Cortez v. State, 420 S.W.3d 803, 804 (Tex. Crim. App. 2013) ("[I]nstead of dismissing the appeal, the court of appeals should have ordered the trial court to supplement the trial record with a certification of the defendant's right of appeal."); see also Tex. R. App. P. 37.1 ("If a proper notice of appeal or certification of a criminal defendant's right of appeal is not filed in the trial court within 30 days of the date of the clerk's notice, the clerk must refer the matter to the appellate court, which will make an appropriate order under this rule or Rule 34.5(c)(2)."); Tex. R. App. P. 44.4 (court of appeals must not dismiss appeal "if the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals" and the error is remediable).
Accordingly, we ABATE this appeal and direct the trial court to file a certification of the defendant's right of appeal from the August 1, 2017 denial of appellant's DNA motion with the trial court clerk and direct the clerk to prepare and file a supplemental clerk's record containing the certification with this court by February 22, 2018.
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 will also consider an appropriate motion to reinstate the appeal filed by either party.
PER CURIAM