Somer Rachelle Nesloney v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 10, 2023
• Docket: 13-22-00006-CR
• Status: Published

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.

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Peña Memorandum Opinion by Justice Peña

This cause is before the court upon its own motion. On January 5, 2022, appellant

filed a notice of appeal challenging a deferred adjudication community supervision order.

On February 15, 2022, the Clerk of the Court notified appellant’s counsel that it appears

there is no final, appealable order in this matter and requested a correction of the defect, but appellant’s counsel failed to respond. On April 27, 2022, the Court abated the matter

and remanded to the trial court 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.

On July 15, 2022, the Court issued a supplemental order of abatement which

additionally required the trial court to make findings and recommendations concerning:

(1) whether the trial court’s certification of appealability is correct; and (2) whether the

appellant has the right of appeal. Upon review of the subsequent supplemental reporter’s

and clerk’s records, an amended certification was executed and filed. The amended

certification reflects that appellant does not have the right to appeal this case.

The Texas Rules of Appellate Procedure provide that an appeal must be dismissed

if the trial court’s certification does not show that the defendant has the right of appeal.

TEX. R. APP. P. 25.2(d); see TEX. R. APP. P. 37.1, 44.3, 44.4. Accordingly, the appeal is

reinstated and is hereby dismissed. We dismiss all pending motions as moot.

L. ARON PEÑA Justice

Do not publish.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

Delivered and filed on the 10th day of March, 2023.