Richard Scott Purgason v. State

Opinion

NO. 07-11-00417-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 3, 2011

RICHARD SCOTT PURGASON, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 18TH DISTRICT COURT OF JOHNSON COUNTY;

NO. F39678; HONORABLE JOHN E. NEILL, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON ABATEMENT AND REMAND

Following a plea of not guilty, appellant, Richard Scott Purgason, was convicted

by a jury of three counts of aggravated sexual assault of a child, and sentenced to 99

years incarceration in the Texas Department of Criminal Justice, Institutional Division.

The clerk=s record was filed on October 14, 2011.

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). Additionally, the certification must be signed by the defendant and a copy must

be given to him. Id. The certification must also 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 in this case states that this was

not a plea-bargain case, and that appellant has the right of appeal. However, the

certification was not signed by appellant, and does not reflect whether a copy of the

certification was given to appellant. 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 that complies 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 November 28, 2011.

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).

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 It is so ordered.

Per Curiam