Joseph Anthony Kennedy v. State

Opinion

NO. 07-11-0042-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 2, 2011 ______________________________

JOSEPH ANTHONY KENNEDY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY;

NO. 09-887-K26; HONORABLE BILLY RAY STUBBLEFIELD, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

Following a plea of not guilty, Appellant, Joseph Anthony Kennedy, was

convicted by a jury of one count of continuous sexual abuse of a child1 and two counts

of indecency with a child by contact.2 Appellant was sentenced to thirty-five years

confinement for continuous sexual abuse of a child and to two years confinement for

1 Tex. Penal Code Ann. § 21.02(b) (West Supp. 2010). 2 Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2010). each count of indecency with a child by contact. The sentences were ordered to run

consecutively. Appellant timely perfected this appeal. The clerk's record filed on

January 10, 2011, contains the Trial Court's Certification of Defendant's Right of Appeal.

However, the certification is not signed by Appellant as required by Rule 25.2(d) of the

Texas Rules of Appellate Procedure.3 Consequently, the certification is defective.4 See

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

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

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

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

in compliance with Rule 25.2(d). 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 within sixty days of the date of this order. This order constitutes

notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of

the defective certification. 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).

3 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. 4 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. Tex. Gov’t Code Ann. § 73.001 (West 2005). Cognizant that Rule 41.3 of the Texas Rules of Appellate Procedure requires precedent of the transferor court to be applied, the transferee court is not expected to follow the transferor court's local rules or otherwise supplant its own local procedures with those of the transferor court. See Tex. R. App. P. 41.3 Notes and Comments.

2 On February 1, 2011, the Official Court Reporter filed a request for an extension

of time in which to file the reporter's record to March 21, 2011. While this appeal is

abated, all appellate timetables are suspended. Consequently, the request for an

extension is rendered moot. The reporter's record will be due thirty days following

reinstatement of this appeal

It is so ordered.

Per Curiam

Do not publish.