IN THE
TENTH COURT OF APPEALS
No. 10-16-00109-CR
EX PARTE ANTONIO GIL
From the 13th District Court
Navarro County, Texas
Trial Court No. 32832-CR
ABATEMENT ORDER
On April 6, 2016, appellant, Antonio Gil, filed his pro se notice of appeal,
challenging the trial court’s February 17, 2016 denial of his application for writ of habeas
corpus. Thereafter, on April 21, 2016, the Clerk’s Record was filed. Upon reviewing the
record, we did not find a certification of appellant’s right to appeal from the denial of his
habeas-corpus application.
On May 26, 2016, we informed appellant that the record does not contain a
certification of his right of appeal and requested that he cause the certification to be filed
in a Supplemental Clerk’s Record within thirty days. Appellant did not respond to our
letter.
Subsequently, on July 12, 2016, we sent a notice to the trial judge requesting that
the trial-court clerk file a Supplemental Clerk’s Record containing the certification within
twenty-eight days of this letter. Two days later, a Supplemental Clerk’s Record
containing a certification was filed. However, upon closer inspection, the certification is
problematic.
First, the certification is file stamped April 26, 2010, which predates appellant’s
habeas-corpus application by almost six years. Additionally, the certification does not
indicate whether appellant has the right to appeal. And finally, the certification is not
signed by appellant.
Texas Rule of Appellate Procedure 25.2(d) provides that:
If the defendant is the appellant, the record must include the trial court’s
certification of the defendant’s right of appeal under Rule 25.2(a)(2). 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).
TEX. R. APP P. 25.2(d) (emphasis added). Here, we do not have an effective certification
of appellant’s right of appeal with respect to the denial of his habeas-corpus application.1
1The Clerk’s Record reveals that Senior District Judge F.B. (Bob) McGregor Jr. signed the order
denying appellant’s habeas-corpus application on February 17, 2016.
Ex parte Gil Page 2
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 2010 certification is not
effective with respect to his habeas application, and because we have not yet received a
compliant certification in this matter, we must move to the second step in Cortez. 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 indicate appellant’s appellate rights
and that it be signed by appellant. See TEX. R. APP. P. 25.2(d). Once properly completed
and executed, the certification shall be included 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 within forty-two days of the date of this order.
PER CURIAM
Ex parte Gil Page 3
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed August 10, 2016
Do not publish
[CR25]
Ex parte Gil Page 4