Ben Henley v. State

Opinion

Order entered March 18, 2013

In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00053-CR

BEN LEE HENLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F11-61328-l

ORDER By letter dated January 17, 2013, this Court notified the trial court that we had a question

concerning the accuracy of the certification of appellant’s right to appeal. Specifically, the

certification states appellant waived his right to appeal. The record, however, reflects appellant

was convicted by a jury following a trial on his not guilty plea and the trial court assessed

punishment at five years’ imprisonment. Nothing in the record reflects there was an agreement

as to punishment or that appellant waived his right to appeal after he knew what sentenced would

be assessed. Because it appears the certification is inaccurate, we asked the trial court to review

the record and to file, within ten days, either an amended certification or written verification,

supported by documentation, that the existing certification is correct. On February 6, 2013 and

February 26, 2013, we sent the trial judge letters inquiring about the status of the amended certification or verification. To date, we have not received an amended certification of

appellant’s right to appeal or written verification that the existing certification is correct. The

appeal cannot proceed until the issue of the certification is resolved.

Accordingly, we ORDER the trial court to file, within FIFTEEN DAYS of the date of

this order, either an amended certification of appellant’s right to appeal or written verification,

with supporting documentation, that the existing certification is correct.

We DIRECT the Clerk to send copies of this order, by electronic transmission, to the

Honorable Carter Thompson, Presiding Judge, Criminal District Court No. 5, and to counsel for

all parties.

/s/ DAVID EVANS JUSTICE