Rosa Arroyos v. State

• Court: Court of Appeals of Texas
• Decided: October 3, 2011
• Docket: 08-11-00242-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ ROSA MARIA ARROYOS, No. 08-11-00242-CR § Appellant, Appeal from the § v. Criminal District Court No. 1 § of El Paso County, Texas THE STATE OF TEXAS, § (TC# 20090D01218) Appellee. §

MEMORANDUM OPINION

The Clerk of this Court notified counsel that the record does not include a certification of

defendant’s right of appeal. The notice instructed Appellant to remedy this defect and stated that

if she failed to do so, the appeal would be dismissed. In response to the Clerk’s notice,

Appellant’s counsel advised the court in writing that she has no way of obtaining Appellant’s

signature on the required certification, and thus cannot remedy the defect, because it is counsel’s

understanding that Appellant absconded during trial and remains at large. The record supports

counsel’s understanding that Appellant absconded during trial. The trial court signed a judgment

nisi on the date of trial, stating that Appellant had failed to appear.

Rule 25.2 governs a defendant’s right of appeal in a criminal case. The rule requires the

trial court to enter a certification of the defendant’s right of appeal, signed by the defendant, in

every case in which it enters a judgment of guilt or other appealable order. TEX .R.APP .P.

25.2(a)(2), (d). We must dismiss an appeal if a certification showing the defendant’s right of

appeal is not part of the record. TEX .R.APP .P. 25.2(d). Furthermore, Rule 42.4 requires us to dismiss an appeal “on the State’s motion, supported

by affidavit, showing that the appellant has escaped from custody pending the appeal and that to

the affiant’s knowledge, the appellant has not, within ten days after escaping, voluntarily returned

to lawful custody within the state.” TEX .R.APP .P. 42.4. Although the State has not filed a

motion and affidavit, the judgment nisi demonstrates that Appellant has escaped, and counsel’s

letter demonstrates that she has not returned. See Ike v. State, 998 S.W.2d 323, 323 (Tex.App.--

Houston [1st Dist.] 1999, no pet.). We therefore suspend Rule 42.4’s requirement of a motion

and affidavit. See TEX .R.APP .P. 2.

The appeal is dismissed for the foregoing reasons.

October 3, 2011 DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)

-2-