Yvonne Carol Lindsey v. State

• Court: Court of Appeals of Texas
• Decided: May 28, 2015
• Docket: 10-15-00007-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00007-CR

YVONNE CAROL LINDSEY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 278th District Court Walker County, Texas Trial Court No. 25,743

ABATEMENT ORDER

On January 9, 2015, appellant, Yvonne Carol Lindsey, filed her notice of appeal in

this matter. Attached to her notice of appeal was a copy of the trial court’s certification

of her right of appeal. Upon reviewing the certification, this Court noticed that appellant

had not signed the certification of her right of appeal. Accordingly, on January 15, 2015,

we informed appellant, the trial court, the Walker County District Clerk’s Office, and the Walker County District Attorney’s Office that the trial court’s certification of appellant’s

right of appeal is defective and requested that the defect be cured within thirty days.

Subsequently, on April 8, 2015, the Clerk’s Record was filed. Once again, the trial

court’s certification of appellant’s right of appeal was unsigned by appellant.1 Thereafter,

we received a letter from Kimberly Bartee, the Chief Deputy District Clerk for Walker

County. In her letter, Bartee indicated that appellant’s attorney “has tried numerous

times to contact Ms. Lindsey and left numerous voice messages of the urgent need for her

to sign the Trial Court Certification” and that the Walker County District Clerk’s Office

“has had no contact with [Appellant].” As such, “the Clerk’s Record was sent to the Court

with the Trial Court Certification incomplete due to the lack of signature.” To date,

appellant has not signed the trial court’s certification of her right of appeal.

Texas Rule of Appellate Procedure 25.2(d) provides that:

The certification shall include a notice that the defendant has been informed of [her] rights concerning an appeal, as well as any right to file a pro se petition for discretionary review. This notification shall be signed by the defendant, with a copy given to [her]. The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2).

1 The record reflects that this case involves the revocation of appellant’s community supervision. When the trial court first imposed community supervision, appellant signed the certification of her right of appeal. However, when appellant’s community supervision was revoked, the certification was unsigned. Nevertheless, the certification in appellant’s community-supervision-revocation case indicates that she has the right to appeal.

Lindsey v. State Page 2 TEX. R. APP P. 25.2(d) (emphasis added). Therefore, because the certification on file has

not been signed by appellant, it is defective. See Dears v. State, 154 S.W.3d 610, 614 (Tex.

Crim. App. 2005); see also Anthony v. State, No. 07-13-00089-CR, 2013 Tex. App. LEXIS

13064, at *2 (Tex. App.—Amarillo Oct. 18, 2013, no pet.) (mem. op., not designated for

publication).

In Cortez v. State, the Texas Court of Criminal Appeals outlined the procedure for

obtaining a proper certification under the Texas Rules of Appellate Procedure. See 420

S.W.3d 803, 806-07 (Tex. Crim. App. 2013). The first step, as was undertaken in this

matter, is to notify the trial judge and the trial court clerk of the defective certification and

to direct supplementation of the record. See TEX. R. APP. P. 34.5(c)(2); see also Cortez, 420

S.W.3d at 806. Because we have concluded that appellant’s certification is defective, and

because we have not yet received a compliant certification in this matter, we must move

to the second step in Cortez—to direct the trial court to obtain a properly executed

certification that does comply with Texas Rule of Appellate Procedure 25.2(d). See TEX.

R. APP. P. 25.2(d); see also Cortez, 420 S.W.3d at 806.

Consequently, we abate the appeal and remand the cause to the trial court for

further proceedings. On remand, the trial court may utilize whatever means its finds

necessary to secure and file with this Court a certificate of right of appeal that complies

with Rule 25.2(d), including the requirement that it be signed by appellant. See TEX. R.

APP. P. 25.2(d). Once properly completed and executed, the certification shall be included

Lindsey v. State Page 3 in a Supplemental Clerk’s Record. See id. at R. 34.5(a)(12). The trial court shall cause the

Supplemental Clerk’s Record to be filed with the Clerk of this Court by July 3, 2015.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed May 28, 2015 Do not publish [CR25]

Lindsey v. State Page 4