David John Madrid v. State

NO. 07-09-0051-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 25, 2009

______________________________

DAVID JOHN MADRID, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 181^ST DISTRICT COURT OF POTTER COUNTY;

NO. 50,763-B; HON. RICHARD DAMBOLD, PRESIDING

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

          Following a plea of guilty, appellant, David John Madrid, was convicted by a trial court of possession with intent to deliver a controlled substance, namely methamphetamine, a first degree felony and sentenced to 25 years incarceration in the Texas Department of Criminal Justice, Institutional Division. The clerk’s record was filed on March 13, 2009.

          Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter a Certification of Defendant’s Right of Appeal each time it enters a judgment of guilt or other appealable order. Tex. R. App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). An appeal must be dismissed if the certification has not been made part of the record under the applicable rules. Tex. R. App. P. 25.2(d). An appellate court that has an appellate record that includes a certification is obligated to review the record to ascertain whether the certification is defective. Dears v. State, 154 S.W.3d 610, 615 (Tex.Crim.App. 2005).

          Pursuant to an amendment to Rule 25.2(d), which became effective on September 1, 2007, the certification of defendant’s right of appeal must be signed by the defendant and a copy must be given to him. Tex. R. App. P. 25.2(d). Additionally, the certification shall include a notice that the defendant has been informed of his rights concerning appeal, as well as his right to file a pro se petition for discretionary review.

          The certification contained in the clerk’s record does not contain the defendant’s signature. Furthermore, it does not reflect whether a copy of the certification was given to the defendant nor does it indicate whether the defendant was given the required admonishments. Therefore, the certification on file is defective.

          Consequently, we abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly executed, the certification shall be included in a supplemental clerk’s record and filed with the Clerk of this Court on or before April 20, 2009.

          This order constitutes notice to all parties of the defective certification pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 37.1. If a supplemental clerk’s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).

          It is so ordered.

Per Curiam

Do not publish.

Accent 1"/>

NO. 07-10-00164-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL A

 

SEPTEMBER 28, 2010

 

 

NYLES MARTIN, APPELLANT

 

v.

 

CACV OF COLORADO, LLC, APPELLEE

 

 

 FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

 

NO. 2008-561,931; HONORABLE JUDY C. PARKER, JUDGE

 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

 

 

MEMORANDUM OPINION

 

Appellant, Nyles Martin, has filed a motion to dismiss this appeal because he no longer desires to pursue it.  No decision of this Court having been delivered to date, we grant the motion.  Accordingly, the appeal is dismissed.  See Tex. R. App. P. 42.1(a)(1).  While Martin’s motion requests that costs be charged to the party incurring them, there is no valid agreement of the parties to allocate costs in this manner.  See Tex. R. App. P. 6.6.^[1]  Therefore, all costs related to this appeal are assessed against appellant.  See Tex. R. App. P. 42.1(d).^[2]  If dismissal will prevent appellee from seeking relief to which it would otherwise be entitled, the Court directs appellee to file a timely motion for rehearing.  No motion for rehearing from appellant will be entertained.

 

                                                                                                Mackey K. Hancock

                                                                                                            Justice

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^[1] An agreement of the parties or their counsel concerning an appellate court proceeding must be writing and signed by the parties or their counsel.  Id.

 

^[2] Absent a valid agreement of the parties, the Court will tax costs against the appellant.  Id.