John Dennis Clayton Anthony v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00089-CR ________________________

JOHN DENNIS CLAYTON ANTHONY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 287th District Court Bailey County, Texas Trial Court No. 2557; Honorable Gordon H. Green, Presiding

October 18, 2013

ABATEMENT AND REMAND

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

On January 14, 2009, Appellant, John Dennis Clayton Anthony, was granted

deferred adjudication for aggravated sexual assault1 and placed on community

supervision for eight years. He was also assessed a $3,000 fine and ordered to pay

$783.08 in restitution. Later in 2009, the State filed a motion to adjudicate. That

proceeding resulted in an agreed order modifying the conditions of his community 1 TEX. PENAL CODE ANN. § 22.021 (West Supp. 2012). supervision. In 2011, the State again sought to adjudicate Appellant guilty. Again, the

proceeding resulted in a modified order which included additional special conditions.

Finally, the State’s third attempt to revoke Appellant’s community supervision resulted in

an adjudication of guilt and the assessment of a life sentence. Appellant perfected this

appeal from that judgment.

When the clerk’s record was filed on June 11, 2013, it came to this Court’s

attention that the record did not contain a Trial Court’s Certification of Defendant’s Right

of Appeal as required by Rule 25.2(d) of the Texas Rules of Appellate Procedure.

Pursuant to Rule 37.1, by letter dated September 6, 2013, the Clerk of this Court

notified the trial judge and court clerk of the defect and directed that a supplemental

clerk’s record containing a certification be filed. A supplemental clerk’s record was filed

on October 14, 2013, and it does contain a Trial Court's Certification of Defendant's

Right of Appeal. That certification, however, is not signed by Appellant and it is not in

compliance with the promulgated forms.2 Consequently, the certification is defective.

See Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App. 2005).

The Texas Court of Criminal Appeals has recently confirmed the procedure for

obtaining a proper certification under the Texas Rules of Appellate Procedure. See

Cortez v. State, __ S.W.3d __, No. PD-1349-12, 2013 Tex. Crim. App. LEXIS 1323, at

*8-9 (Tex.Crim.App. Sept. 18, 2013). The first step, as was undertaken in this appeal, is

2 Effective September 1, 2007, Rule 25.2(d) was amended to require that a defendant sign the certification and receive a copy which contains certain admonishments not previously required. The proper form is contained in Appendix D to the Texas Rules of Appellate Procedure and can be found on this Court’s website at http://7thcoa.courts.state.tx.us/forms/TC-Certification.pdf.

2 to notify the trial judge and trial court clerk of the omission and to direct supplementation

of the record. See TEX. R. APP. P. 34.5(c)(2). Cortez, however, also notes that a

“certification must be signed by the defendant” as required by Rule 25.2(d). Cortez,

2013 Tex. Crim. App. LEXIS 1323, at *5. Our conclusion that the certification is

defective brings us to the next step discussed in Cortez, which is to direct the trial court

to obtain a properly executed certification that does comply with Rule 25.2(d). See id. at

*8.

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

further proceedings. Upon remand, the trial court shall utilize whatever means

necessary to secure a Trial Court's Certification of Defendant's Right of Appeal which is

in compliance with Rule 25.2(d), including the requirement that it be signed by

Appellant. Once properly completed and executed, the certification shall be included in

a supplemental clerk's record. See TEX. R. APP. P. 34.5(a)(12). The trial court shall

cause the supplemental clerk's record to be filed with the Clerk of this Court by

December 2, 2013. If a supplemental clerk's record containing a proper certification is

not filed in accordance with this order, this cause will be referred to the Court for further

action. See TEX. R. APP. P. 25.2(d).

It is so ordered.

Per Curiam

Do not publish.