Ex Parte John Timothy Brantley

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-16-00262-CR

EX PARTE JOHN TIMOTHY BRANTLEY

From the County Court at Law Walker County, Texas Trial Court No. 16-0339A

ORDER

On August 8, 2016, John Timothy Brantley filed a notice of appeal challenging the

trial court’s August 1, 2016 denial of his application for writ of habeas corpus. On

September 1, 2016, we informed Appellant, the trial court, and the trial court clerk that

the record does not contain a certification of his right of appeal and requested that the

certification to be filed in a Supplemental Clerk’s Record within thirty days. This Court

has not received the certification of Appellant’s right to appeal.

Texas Rule of Appellate Procedure 25.2(d) provides that:

If the defendant is the appellant, the record must include the trial court’s certification of the defendant’s right of appeal under Rule 25.2(a)(2). The certification shall include a notice that the defendant has been informed of [her] rights concerning an appeal, as well as any right to file a pro se petition for discretionary review. This notification shall be signed by the defendant, with a copy given to him. The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2).

TEX. R. APP P. 25.2(d) (emphasis added).

Pursuant to Cortez v. State, under Rule of Appellate Procedure 37.1, if the trial-

court clerk does not file the certification after notice from the appellate clerk, as was the

case here, the appellate clerk "must refer the matter to the appellate court, which will

make an appropriate order under this rule or Rule 34.5(c)(2)." Cortez v. State, 420 S.W.3d

803, 807 (Tex. Crim. App. 2013). Consequently, we abate the appeal and remand the cause

to the trial court for further proceedings. On remand, the trial court may utilize whatever

means its finds necessary to secure and file with this Court a certificate of right of appeal

that complies with Rule 25.2(d), including the requirement that it indicate appellant’s

appellate rights and that it be signed by appellant. See TEX. R. APP. P. 25.2(d). Once

properly completed and executed, the certification shall be included in a Supplemental

Clerk’s Record. See id. at R. 34.5(a)(12). The trial court shall cause the Supplemental

Clerk’s Record to be filed with the Clerk of this Court within forty-two days of the date

of this order.

PER CURIAM

Ex parte Brantley Page 2 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed December 7, 2016 Do not publish [CR25]

Ex parte Brantley Page 3