Jorge Antonio Marshall v. State

• Court: Court of Appeals of Texas
• Decided: August 10, 2016
• Docket: 13-16-00391-CR
• Status: Published

Opinion

NUMBER 13-16-00391-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JORGE ANTONIO MARSHALL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 264th District Court of Bell County, Texas.

ORDER Before Chief Justice Valdez and Justices Garza and Longoria Order Per Curiam

Appellant Jorge Antonio Marshall, proceeding pro se, filed a notice of appeal with

this Court from his conviction in trial court cause number 66630 in the 264th District Court

of Bell County, Texas.1 The trial court’s certification of the defendant’s right to appeal

1 This appeal was transferred to this Court from the Third Court of Appeals by order of the Texas showed that the defendant has the right to appeal. See TEX. R. APP. P. 25.2(a)(2).

However, the clerk’s record also contains a waiver of the right to appeal signed by the

appellant and his counsel.

When the appellate record has been filed, we are obligated to review the record to

determine whether the trial court's certification of appellant's right of appeal is defective

and, if so, to obtain another certification from the trial court. Dears v. State, 154 S.W.3d

610, 614-15 (Tex. Crim. App. 2005); see TEX. R. APP. P. 34.5(c); 37.1. A defective

certification includes a certification that is correct in form, but, when compared with the

record before the court, proves to be inaccurate. Dears, 154 S.W.3d at 614.

Because of the ambiguity of the record and certification, we abate and remand this

case to the trial court for re-certification of appellant's right of appeal. See TEX. R. APP.

P. 34.5(c), 44.3, 44.4; Dears, 154 S.W.3d at 614. On remand, the trial court shall issue

notice of a hearing and conduct a hearing addressing the foregoing matter. We further

direct that, after conducting the hearing, the trial court re-certify whether appellant has the

right of appeal. The trial court shall also address the timeliness of appellant’s notice of

appeal.

The trial court's amended certification, and any orders it enters shall be included

in a supplemental clerk's record. The trial court is directed to cause the supplemental

clerk's record to be filed with the Clerk of this Court within thirty days of the date of this

order. Should the trial court require more time to comply with the directions of this Court,

it shall request an extension prior to the expiration of this deadline.

Supreme Court. See TEX. GOV'T CODE ANN. § 22.220(a) (Wes, Westlaw through 2015 R.S.); TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.). 2 It is so ORDERED.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 10th day of August, 2016.