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Smith v. State

State of Texas in the Fourteenth Court of Appeals
Nov 7, 2017
NO. 14-17-00129-CR (Tex. App. Nov. 7, 2017)

Opinion

NO. 14-17-00129-CR

11-07-2017

MICHAEL SMITH, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 174th District Court Harris County, Texas
Trial Court Cause No. 1430835

ABATEMENT ORDER

Appellant timely appealed from a conviction for the offense of capital murder. On March 15, 2017, the trial court clerk filed the clerk's record, which contained two certifications of defendant's right of appeal. One certification is blank. The second indicates this "is a plea-bargain case, and the defendant has NO right of appeal or the defendant has waived the right of appeal."

An appellate court must review the record to determine if the certification is contrary to the record and therefore defective. Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). The judgment reflects that this is not a plea-bargain case.

"The court of appeals must dismiss an appeal if a certification showing that the defendant has the right to appeal is not made a part of the appellate record." Id. at 613; Tex. R. App. P. 25.2(d). However, dismissal is inappropriate if the trial court's defective certification can be remedied. See Cortez v. State, 420 S.W.3d 803, 807 (Tex. Crim. App. 2013); see also Tex. R. App. P. 44.4. Pursuant to Rule 37.1, on March 15, 2017 and July 11, 2017, we requested that the trial court review the record and, if necessary, correct the certification of the defendant's right to appeal. Tex. R. App. P. 37.1. We further requested the trial court file a supplemental clerk's record with this court within 30 days of the date of the notice. Id. To date, we have not received a response to our request.

On October 16, 2017, appellant filed a motion contending the certification of defendant's right to appeal is incorrect. Appellant requested we abate this case and order the trial court to correct the certification of defendant's right to appeal. Appellant's motion is granted.

We therefore abate this case and order the trial court to review the record and, if necessary, correct the certification of the defendant's right to appeal. See Tex. R. App. P. 34.5(c)(2), 44.4; Cortez, 420 S.W.3d at 806-07. We further direct the clerk to prepare and file a supplemental clerk's record containing the corrected certification with this court within 30 days of the date of this order.

PER CURIAM Panel consists of Justices Christopher, Donovan, and Jewell.


Summaries of

Smith v. State

State of Texas in the Fourteenth Court of Appeals
Nov 7, 2017
NO. 14-17-00129-CR (Tex. App. Nov. 7, 2017)
Case details for

Smith v. State

Case Details

Full title:MICHAEL SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Court:State of Texas in the Fourteenth Court of Appeals

Date published: Nov 7, 2017

Citations

NO. 14-17-00129-CR (Tex. App. Nov. 7, 2017)