Jeffery Allen Whitfield v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 5, 2021
• Docket: 03-21-00170-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00170-CR

Jeffery Allen Whitfield, Appellant

v.

The State of Texas, Appellee

FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 63048, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING

O R D E R A ND M E M O R A N D U M O P I N I O N

PER CURIAM

Appellant Jeffery Allen Whitfield seeks appellate review of the trial court’s order

denying his pro se motion for post-conviction DNA testing under Chapter 64 of the Texas Code

of Criminal Procedure. See Tex. Code Crim. Proc. arts. 64.01-.05.

The appellate rules require the trial court to certify the defendant’s right of appeal

each time it enters a judgment of guilt or other appealable order. Tex. R. App. P. 25.2(a)(2). In

this case, the trial-court certification states, in a hand-written notation, that “no order exists upon

which an appeal may be predicated” and was signed by the trial court on April 6, 2020. Included

with the trial-court certification is a copy of the trial court’s “findings of fact and order denying

[Whitfield’s] post-conviction for DNA testing,” signed by the trial court on February 2, 2021.

Because an order denying a motion for post-conviction DNA testing is an appealable order,

see Tex. Code Crim. Proc. art. 64.05, the certification does not accurately reflect appellant’s right of appeal and, as a result, is defective. Dears v. State, 154 S.W.3d 610, 614 (Tex.

Crim. App. 2005) (explaining that appellate court is required “to examine a certification for

defectiveness and to use [Rules 37.1 and 34.5(c) of Rules of Appellate Procedure] to obtain

another certification, whenever appropriate”).

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

of an amended certification that accurately reflects appellant’s right of appeal in this Chapter 64

proceeding. See Tex. R. App. P. 37.1; Dears, 154 S.W.3d at 614. Once entered, the amended

certification shall be included in a clerk’s record and filed with this Court no later than May 28,

2021. See Tex. R. App. P. 35.3 (trial court clerk is responsible for preparing, certifying, and

timely filing clerk’s record).

It is so ordered on May 5, 2021.

Before Justices Goodwin, Triana, and Kelly

Abated and Remanded

Filed: May 5, 2021

Do Not Publish