Max Elliott Ray v. State

• Court: Court of Appeals of Texas
• Decided: August 8, 2013
• Docket: 03-13-00085-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00085-CR

Max Elliott Ray, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT NO. D-1-DC-11-300233, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant pled not guilty to two counts of sexual assault. He was convicted by the

jury and sentenced to six years imprisonment. The trial court’s certification of his right to appeal,

however, states that appellant waived his right to appeal.1

In determining whether an appellant in a criminal case has the right to appeal, we

examine the trial court’s certification for defectiveness, defined as a certification that is “correct in

form but which, when compared to the record before the court, proves to be inaccurate.” Dears v.

State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). If the certification appears to be defective, we

must obtain a correct certification. Id. at 614-15; see also Tex. R. App. P. 34.5(c), 37.1.

In this case, the record does not support the trial court’s certification that appellant

waived his right to appeal. Therefore, we abate the appeal and remand it to the trial court to issue

1 Appellant and his trial counsel both signed the certification form. an amended and corrected certification. See Dears, 154 S.W.3d at 614-15; Tex. R. App. P. 37.1.

The trial court clerk is instructed to forward a supplemental clerk’s record containing the amended

certification to the clerk of this court no later than September 6, 2013.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Rose and Goodwin

Abated

Filed: August 8, 2013

Do Not Publish