William David Abraham v. State

Opinion

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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WILLIAM DAVID ABRAHAM, § No. 08-13-00200-CR Appellant, § Appeal from the v. § 384th District Court THE STATE OF TEXAS, § of El Paso County, Texas State. § (TC# 20110D03483)

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ORDER

Pending before the Court is Appellant’s motion to order the trial court to amend the trial court certification. The trial court certification states that Appellant waived the right to appeal, but the record does not contain a written waiver executed by Appellant, and the record does not otherwise reflect that Appellant waived his right to appeal. Further, the record reflects that this was not a plea bargain case, Appellant gave oral notice of his intent to appeal following sentencing, and the trial court placed Appellant on an appeal bond pending the appeal.

An appellate court has a duty to review the record to ascertain whether the trial court’s certification properly reflects the proceedings below. Sherwood v. State, 340 S.W.3d 929, 932 (Tex.App.--El Paso 2011, no pet.) (citing Dears v. State, 154 S.W. 3d 610, 614-15 ( Tex.Crim.App. 2005)). A certification is defective if it is correct in form but, when compared with the record before the court, proves to be inaccurate. Dears, 154 S.W. 3d at 614.

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We conclude that the trial court’s certification of the right to appeal is defective and must be corrected. Accordingly, we GRANT Appellant’s motion and order the trial court to execute an amended certification of Appellant’s right to appeal. The trial court is instructed to certify that this is not a plea bargain case and the defendant has the right of appeal. The amended certification shall be filed with the trial court clerk no later than May 19, 2014. The trial court clerk shall prepare a supplemental clerk’s record containing the amended certification and file it with this Court within ten days after the amended certification is filed with the trial court clerk.

IT IS SO ORDERED this 5th day of May, 2014.

PER CURIAM

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