Brandon Michael Pennington v. State

• Court: Court of Appeals of Texas
• Decided: February 2, 2011
• Docket: 07-10-00335-CR
• Status: Published

Opinion

NO. 07-10-0335-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 2, 2011 ______________________________

BRANDON MICHAEL PENNINGTON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

NO. 43,164-B; HONORABLE JOHN B. BOARD, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

Appellant, Brandon Michael Pennington, entered a plea of true to the State's

Amended Motion to Proceed and was adjudicated guilty of possession of

methamphetamine in an amount of 200 grams or more but less than 400.1 Punishment

was assessed at fifty years confinement. The appellate record has been filed. A review

of the Clerk's Record revealed that it did not contain a Trial Court's Certification of

Defendant's Right of Appeal as required by Rule 25.2(a)(2) of the Texas Rules of

1 Tex. Health & Safety Code Ann. § 481.115(e) (West 2010). Appellate Procedure. Pursuant to Rule 37.1(a) of the Texas Rules of Appellate

Procedure, by letter dated December 1, 2010, the trial court and the trial court clerk

were notified of the defect and this Court requested that a certification be filed in a

supplemental record. On January 19, 2011, a Supplemental Clerk's Record was filed

containing a certification; however, none of the options provided to determine if

Appellant has a right of appeal were marked. Consequently, the certification is

defective. See Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App. 2005).

Therefore, we abate this appeal and remand the cause to the trial court for

further proceedings. Upon remand, the trial court shall utilize whatever means

necessary to secure a proper Trial Court's Certification of Defendant's Right of Appeal

in compliance with Rule 25.2(d). 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 within 30 days of the date of this order. If a supplemental clerk's

record containing a proper certification is not filed in accordance with this order, this

cause will be referred to this Court for further action. See Tex. R. App. P. 25.2(d).

Per Curiam

Do not publish.