David Martin Schmitt v. State

• Court: Court of Appeals of Texas
• Decided: October 19, 2018
• Docket: 07-18-00378-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00378-CR

DAVID MARTIN SCHMITT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 66,873-A, Honorable Dan L. Schaap, Presiding

October 19, 2018

ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

Appellant, David Martin Schmitt, appeals his conviction of aggravated sexual

assault1 and sentence to eight years’ confinement. The trial court’s certification of

appellant’s right of appeal indicates this “is not a plea-bargain case, and the defendant

has the right of appeal.” The certification appears defective, however, as appellant signed

1 TEX. PENAL CODE ANN. § 22.021 (West Supp. 2018). a waiver of his right of appeal after his sentence was imposed. See Monreal v. State, 99

S.W.3d 615, 622 (Tex. Crim. App. 2003).

Accordingly, we abate this appeal and remand the cause to the 47th District Court

of Potter County to prepare an amended certification of appellant’s right of appeal

consistent with the record. See TEX. R. APP. P. 25.2(f); Dears v. State, 154 S.W.3d 610,

613-14 (Tex. Crim. App. 2005) (requiring an appellate court to determine whether the trial

court’s certification comports to the record). The trial court shall utilize whatever means

it finds necessary to secure appellant’s signature on the amended certification. See TEX.

R. APP. P. 25.2(d). The amended certification shall be included in a clerk’s record filed

with this Court by November 19, 2018. TEX. R. APP. P. 34.5(c)(2). Should further time be

needed to perform these tasks, then same must be requested before November 19, 2018.

It is so ordered.

Per Curiam

Do not publish.