Luciano Ramirez-Cervantes v. State

Opinion

NO. 07-11-0508-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 16, 2012

______________________________

LUCIANO RAMIREZ-CERVANTES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 61,176-E; HONORABLE DOUGLAS R. WOODBURN, JUDGE

_______________________________

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

ABATEMENT AND REMAND

Appellant timely filed a notice of appeal challenging the trial court's Order of

Deferred Adjudication for possession of a controlled substance. According to the order,

pursuant to a plea bargain, Appellant was placed on deferred adjudication community

supervision for four years. However, in the Trial Court's Certification of Defendant's

Right of Appeal, the trial court checked "is not a plea-bargain case, and the defendant

has the right of appeal." Because these two options are mutually exclusive, either the Order of Deferred Adjudication or the trial court's certification appears defective. See

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

Therefore, we now 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 either enter a corrected Order of Deferred Adjudication Nunc Pro Tunc or

secure a proper Trial Court's Certification of Defendant's Right of Appeal in compliance

with Rule 25.2(d).1 Once a corrected order or properly completed certification has been

executed, the same 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 30 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 potentially defective certification. If a supplemental clerk's record

containing a corrected order or proper certification is not filed in accordance with this

order, this cause will be referred to this Court for further action. See Tex. R. App. P.

25.2(d).

It is so ordered.

Per Curiam

Do not publish.

1 Because the certification of record already contains the defendant's signature acknowledging notification of his rights pursuant to Rule 25.2(d), the defendant's signature on the amended certification is not required.