No syfertize treatment data for this case.
Retrieving the full opinion text from the archive…
John Dennis Clayton Anthony
v.
State
v.
State
07-13-00089-CR.
Court of Appeals of Texas.
Oct 18, 2013.
Unpublished opinion
Published
In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00089-CR
JOHN DENNIS CLAYTON ANTHONY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 287th District Court
Bailey County, Texas
Trial Court No. 2557; Honorable Gordon H. Green, Presiding
October 18, 2013
ABATEMENT AND REMAND
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
On January 14, 2009, Appellant, John Dennis Clayton Anthony, was granted
deferred adjudication for aggravated sexual assault1 and placed on community
supervision for eight years. He was also assessed a $3,000 fine and ordered to pay
$783.08 in restitution. Later in 2009, the State filed a motion to adjudicate. That
proceeding resulted in an agreed order modifying the conditions of his community 1 TEX. PENAL CODE ANN. § 22.021 (West Supp. 2012).
supervision. In 2011, the State again sought to adjudicate Appellant guilty. Again, the
proceeding resulted in a modified order which included additional special conditions.
Finally, the State’s third attempt to revoke Appellant’s community supervision resulted in
an adjudication of guilt and the assessment of a life sentence. Appellant perfected this
appeal from that judgment.
When the clerk’s record was filed on June 11, 2013, it came to this Court’s
attention that the record did not contain a Trial Court’s Certification of Defendant’s Right
of Appeal as required by Rule 25.2(d) of the Texas Rules of Appellate Procedure.
Pursuant to Rule 37.1, by letter dated September 6, 2013, the Clerk of this Court
notified the trial judge and court clerk of the defect and directed that a supplemental
clerk’s record containing a certification be filed. A supplemental clerk’s record was filed
on October 14, 2013, and it does contain a Trial Court's Certification of Defendant's
Right of Appeal. That certification, however, is not signed by Appellant and it is not in
compliance with the promulgated forms.2 Consequently, the certification is defective.
See Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App. 2005).
The Texas Court of Criminal Appeals has recently confirmed the procedure for
obtaining a proper certification under the Texas Rules of Appellate Procedure. See
Cortez v. State, __ S.W.3d __, No. PD-1349-12, 2013 Tex. Crim. App. LEXIS 1323, at
*8-9 (Tex.Crim.App. Sept. 18, 2013). The first step, as was undertaken in this appeal, is
2
to notify the trial judge and trial court clerk of the omission and to direct supplementation
of the record. See TEX. R. APP. P. 34.5(c)(2). Cortez, however, also notes that a
“certification must be signed by the defendant” as required by Rule 25.2(d). Cortez,
2013 Tex. Crim. App. LEXIS 1323, at *5. Our conclusion that the certification is
defective brings us to the next step discussed in Cortez, which is to direct the trial court
to obtain a properly executed certification that does comply with Rule 25.2(d). See id. at
*8.
2
Effective September 1, 2007, Rule 25.2(d) was amended to require that a defendant sign the certification and receive a copy which contains certain admonishments not previously required. The proper form is contained in Appendix D to the Texas Rules of Appellate Procedure and can be found on this Court’s website at http://7thcoa.courts.state.tx.us/forms/TC-Certification.pdf.
Consequently, we abate this appeal and remand this cause to the trial court for
further proceedings. Upon remand, the trial court shall utilize whatever means
necessary to secure a Trial Court's Certification of Defendant's Right of Appeal which is
in compliance with Rule 25.2(d), including the requirement that it be signed by
Appellant. Once properly completed and executed, the certification shall be included in
a supplemental clerk's record. See TEX. R. APP. P. 34.5(a)(12). The trial court shall
cause the supplemental clerk's record to be filed with the Clerk of this Court by
December 2, 2013. If a supplemental clerk's record containing a proper certification is
not filed in accordance with this order, this cause will be referred to the Court for further
action. See TEX. R. APP. P. 25.2(d).
It is so ordered.
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00089-CR
JOHN DENNIS CLAYTON ANTHONY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 287th District Court
Bailey County, Texas
Trial Court No. 2557; Honorable Gordon H. Green, Presiding
October 18, 2013
ABATEMENT AND REMAND
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
On January 14, 2009, Appellant, John Dennis Clayton Anthony, was granted
deferred adjudication for aggravated sexual assault1 and placed on community
supervision for eight years. He was also assessed a $3,000 fine and ordered to pay
$783.08 in restitution. Later in 2009, the State filed a motion to adjudicate. That
proceeding resulted in an agreed order modifying the conditions of his community 1 TEX. PENAL CODE ANN. § 22.021 (West Supp. 2012).
supervision. In 2011, the State again sought to adjudicate Appellant guilty. Again, the
proceeding resulted in a modified order which included additional special conditions.
Finally, the State’s third attempt to revoke Appellant’s community supervision resulted in
an adjudication of guilt and the assessment of a life sentence. Appellant perfected this
appeal from that judgment.
When the clerk’s record was filed on June 11, 2013, it came to this Court’s
attention that the record did not contain a Trial Court’s Certification of Defendant’s Right
of Appeal as required by Rule 25.2(d) of the Texas Rules of Appellate Procedure.
Pursuant to Rule 37.1, by letter dated September 6, 2013, the Clerk of this Court
notified the trial judge and court clerk of the defect and directed that a supplemental
clerk’s record containing a certification be filed. A supplemental clerk’s record was filed
on October 14, 2013, and it does contain a Trial Court's Certification of Defendant's
Right of Appeal. That certification, however, is not signed by Appellant and it is not in
compliance with the promulgated forms.2 Consequently, the certification is defective.
See Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App. 2005).
The Texas Court of Criminal Appeals has recently confirmed the procedure for
obtaining a proper certification under the Texas Rules of Appellate Procedure. See
Cortez v. State, __ S.W.3d __, No. PD-1349-12, 2013 Tex. Crim. App. LEXIS 1323, at
*8-9 (Tex.Crim.App. Sept. 18, 2013). The first step, as was undertaken in this appeal, is
2
to notify the trial judge and trial court clerk of the omission and to direct supplementation
of the record. See TEX. R. APP. P. 34.5(c)(2). Cortez, however, also notes that a
“certification must be signed by the defendant” as required by Rule 25.2(d). Cortez,
2013 Tex. Crim. App. LEXIS 1323, at *5. Our conclusion that the certification is
defective brings us to the next step discussed in Cortez, which is to direct the trial court
to obtain a properly executed certification that does comply with Rule 25.2(d). See id. at
*8.
2
Effective September 1, 2007, Rule 25.2(d) was amended to require that a defendant sign the certification and receive a copy which contains certain admonishments not previously required. The proper form is contained in Appendix D to the Texas Rules of Appellate Procedure and can be found on this Court’s website at http://7thcoa.courts.state.tx.us/forms/TC-Certification.pdf.
Consequently, we abate this appeal and remand this cause to the trial court for
further proceedings. Upon remand, the trial court shall utilize whatever means
necessary to secure a Trial Court's Certification of Defendant's Right of Appeal which is
in compliance with Rule 25.2(d), including the requirement that it be signed by
Appellant. Once properly completed and executed, the certification shall be included in
a supplemental clerk's record. See TEX. R. APP. P. 34.5(a)(12). The trial court shall
cause the supplemental clerk's record to be filed with the Clerk of this Court by
December 2, 2013. If a supplemental clerk's record containing a proper certification is
not filed in accordance with this order, this cause will be referred to the Court for further
action. See TEX. R. APP. P. 25.2(d).
It is so ordered.
Per Curiam
Do not publish.