Somer Rachelle Nesloney v. the State of Texas

Opinion

NUMBER 13-22-00006-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SOMER RACHELLE NESLONEY, Appellant, v. THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of Aransas County, Texas.

SUPPLEMENTAL ORDER OF ABATEMENT Before Justices Longoria, Hinojosa, and Silva Order Per Curiam

By order issued on April 27, 2022, this Court abated this matter and remanded it

to the trial court. We had previously notified appellant’s counsel that it appeared that the

record might fail to contain an appealable order and requested correction of the defect, if

any, but appellant’s counsel failed to respond. We directed the trial court to use whatever

means necessary to make appropriate findings and recommendations concerning the

following: (1) whether appellant desired to prosecute this appeal; (2) why appellant’s counsel failed to file a response regarding the defect in the notice of appeal and whether

counsel had effectively abandoned the appeal; (3) whether appellant had been denied

effective assistance of counsel; (4) whether appellant’s counsel should be removed; and

(5) whether appellant was indigent and entitled to court-appointed counsel. We directed

the trial court to cause its findings and recommendations, together with any orders it may

enter regarding the aforementioned issues, to be filed in a supplemental clerk’s record,

and directed the trial court to cause a supplemental reporter’s record of any proceedings

to be prepared.

We have now received the trial court’s findings and conclusions, which appear to

have been made without notice or hearing. The trial court concluded, simply, that

appellant did not have the right to appeal and its certification of the right to appeal was

incorrect. The trial court’s order did not reference any applicable law or statute in its

findings and conclusions and did not address the matters that we identified in our order.

Additionally, upon review of the trial court’s findings and conclusions, we have

determined the trial court’s certification of appellant’s right of appeal may be incorrect or

otherwise defective. See Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App. 2005);

see Tex. R. App. P. 34.5(c); 37.1. A defective certification includes a certification that is

correct in form, but, when compared with the record before the court, proves to be

inaccurate. Dears, 154 S.W.3d at 614.

Accordingly, we continue the abatement of this matter. We direct the trial court to

provide notice and hold a hearing regarding each of the aforementioned matters and shall

issue findings and conclusions clearly identifying: (1) whether appellant desired to

prosecute this appeal; (2) why appellant’s counsel failed to file a response regarding the

2 defect in the notice of appeal and whether counsel had effectively abandoned the appeal;

(3) whether appellant had been denied effective assistance of counsel; (4) whether

appellant’s counsel should be removed; (5) whether appellant was indigent and entitled

to court-appointed counsel; (6) whether the trial court’s certification of appealability is

correct; and (7) whether the appellant has the right of appeal. See Manuel v. State, 994

S.W.2d 658, 661–62 (Tex. Crim. App. 1999).

The trial court’s findings and conclusions, amended certification, if any, and any

orders it enters shall be included in a supplemental clerk’s record. A supplemental clerk’s

record and a supplemental reporter’s record regarding these proceedings on remand

shall be filed with the Clerk of this Court on or before the expiration of thirty days from the

date of this order.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 15th day of July, 2022.