Herman Miller Griffith v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00286-CR

Herman Miller Griffith, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. CR23,896, HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

After appellant Herman Miller Griffith failed to pay or make arrangements to pay for

the clerk’s record, this Court requested that the Milam County District Clerk’s office provide a copy

of the trial court’s certification of Griffith’s right of appeal. See Tex. R. App. P. 25.2(f). This Court

dismissed Griffith’s appeal for want of jurisdiction based on the trial court’s certification that

Griffith had entered into a plea bargain in the underlying case and had no right of appeal. Griffith

v. State, No. 03-14-00286-CR, 2014 Tex. App. LEXIS 8212, at *1 (Tex. App.—Austin July 30,

2014, no pet. h.). The Milam County District Clerk’s office subsequently notified this Court that it

provided us with the trial court’s certification of defendant’s right of appeal as to his plea, but the

trial court’s certification of defendant’s right of appeal as to his sentence has not yet been signed.1

1 This procedure is unusual because the appellate rules require the trial court’s certification of the defendant’s right of appeal only “when it enters a judgment of guilt or other appealable order.” Tex. R. App. P. 25.2(b). Griffith’s plea was neither a judgment of guilt nor an appealable order. Accordingly, on our own motion, we withdraw the opinion and judgment in this

cause issued on July 30, 2014, reinstate the appeal, abate it, and remand this cause to the trial court

for preparation and filing of the certification of Griffith’s right of appeal as to his sentence. See

Tex. R. App. P. 25.2(f). If the court determines that Griffith has a right of appeal, the court shall

conduct a hearing to determine whether Griffith desires to prosecute this appeal, whether he is

indigent, whether his appointed trial counsel, Jack Holmes, has abandoned this appeal or been

permitted to withdraw, and if so, whether new counsel should be appointed. See Tex. R. App.

P. 37.3(a)(2), 38.8(b)(2); see also Tex. Code Crim. Proc. art. 26.04(j)(2) (appointed attorney “shall

represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted,

or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a

finding of good cause is entered on the record”).

A clerk’s record containing the trial court’s certification—and if Griffith has the right

of appeal, copies of all orders signed and a transcription of the reporter’s notes from the hearing on

Griffith’s indigency and any necessary appointment of counsel—shall be filed with this Court no

later than September 15, 2014. See Tex. R. App. P. 25.2(d), 34.5(a)(12), 37.1, 37.3(b).

Before Chief Justice Jones, Justices Rose and Goodwin

Abated and Remanded

Filed: August 15, 2014

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