Marc E. Rounsavall v. State

• Court: Court of Appeals of Texas
• Decided: March 6, 2009
• Docket: 07-09-00046-CR
• Status: Published

Opinion

NO. 07-09-0046-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 6, 2009 ______________________________

MARC E. ROUNSAVALL, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

NO. 2007-442,973; HON. LARRY B. “RUSTY” LADD, PRESIDING _______________________________

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

ABATEMENT AND REMAND

Following a plea of not guilty, appellant, Marc E. Rounsavall, was convicted by a jury

of driving while intoxicated and sentenced to 30 days incarceration in the Lubbock County

Jail and $2,000 fine. The fine was, however, probated. The clerk’s record was filed on

February 26, 2009.

Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter

a Certification of 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); Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). An appeal must be dismissed if the certification has not

been made part of the record under the applicable rules. TEX . R. APP . P. 25.2(d). An

appellate court that has an appellate record that includes a certification is obligated to

review the record to ascertain whether the certification is defective. Dears v. State, 154

S.W.3d 610, 615 (Tex.Crim.App. 2005).

Pursuant to an amendment to Rule 25.2(d), which became effective on September

1, 2007, the certification of defendant’s right of appeal must be signed by the defendant

and a copy must be given to him. TEX . R. APP. P. 25.2(d). Additionally, the certification

shall include a notice that the defendant has been informed of his rights concerning appeal,

as well as his right to file a pro se petition for discretionary review.1

The certification contained in the clerk’s record does not contain the defendant’s

signature. Furthermore, it does not reflect whether a copy of the certification was given to

the defendant nor does it indicate whether the defendant was given the required

admonishments. Therefore, the certification on file is defective.

Consequently, 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 Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d).

Once properly executed, the certification shall be included in a supplemental clerk’s record

and filed with the Clerk of this Court on or before April 6, 2009.

1 The proper form for Certification of Defendant’s Right of Appeal is contained in Appendix D of the 2008 Texas Rules of Appellate Procedure.

2 This order constitutes notice to all parties of the defective certification pursuant to

Rule 37.1 of the Texas Rules of Appellate Procedure. See TEX . R. APP. P. 37.1. If a

supplemental clerk’s record containing a proper certification is not filed in accordance with

this order, this matter will be referred to the Court for dismissal. See TEX . R. APP. P.

25.2(d).

It is so ordered.

Per Curiam

Do not publish.