Carl Pinner v. State

• Court: Court of Appeals of Texas
• Decided: March 20, 2008
• Docket: 07-08-00108-CR
• Status: Published

Opinion

NO. 07-08-0108-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 20, 2008

                                       ______________________________

CARL PINNER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

NO. 3748; HONORABLE FELIX KLEIN, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

          Following a plea of not guilty, appellant Carl Pinner was convicted by jury of aggravated sexual assault and sentenced to life imprisonment. While orally announcing intent to appeal, appellant’s trial counsel failed to timely file a written notice of appeal on appellant’s behalf prior to withdrawing from representation. On appellant’s application for writ of habeas corpus, the Court of Criminal Appeals granted him the opportunity to file an out-of-time appeal. Ex parte Carl Pinner, No. AP-75, 802 (Tex.Crim.App. December 5, 2007) (per curiam) (not designated for publication). Appellant then timely filed his notice of appeal.

          The clerk’s record filed on March 10, 2008 contains the Trial Court’s Certification of Defendant’s Right of Appeal. The certification form, however, is not signed by appellant as required by Texas Rule of Appellate Procedure 25.2(d), nor does it contain the required admonitions of appellant’s rights. The trial court certification is required even when the Court of Criminal Appeals grants an out-of-time appeal. Odneal v. State, 161 S.W.3d 692, 694 (Tex.App.–Beaumont 2005, pet. ref’d) (viewing the Court’s habeas corpus relief as “turning the clock back” to the day of conviction, and providing appellant the opportunity to timely file notice of appeal, “at which point the requirements of the Rules of Appellate Procedure come into effect”).

          Consequently, we abate this appeal and remand the cause to the trial court for further proceedings. On remand, the trial court shall utilize whatever means necessary to secure a Certification of Defendant’s Right of Appeal in compliance with Texas Rule of Appellate Procedure 25.2(d), as presently in effect. This action is to be taken not later than April 21, 2008. Once properly executed, the certification shall be included in a supplemental clerk’s record and filed with this Court on or before May 1, 2008.

          It is so ordered.

                                                                                      Per Curiam

Do not publish.