Jessie Nelson v. State of Texas

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Fourth Court of Appeals
San Antonio, Texas
August 9, 2021

No. 04-21-00320-CR

Jessie NELSON,
Appellant

The STATE of Texas,
Appellee

From the County Court, Atascosa County, Texas
Trial Court No. 35546
Honorable Bob Brendel, Judge Presiding

ORDER

Appellant, Jessie Ray Nelson, filed a notice of appeal from the judgment on August 4,
2021. The clerk’s record has been filed. The clerk’s record includes the trial court’s certification
of defendant’s right of appeal, which states “the Defendant has waived the right of appeal.”

Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure requires “[t]he trial court [to]
enter a certification of the defendant’s right of appeal in every case in which it enters a judgment
of guilt or other appealable order.” TEX. R. APP. P. 25.2(a)(2). This court must dismiss an appeal
“if a certification that shows the defendant has the right of appeal has not been made part of the
record.” TEX. R. APP. P. 25.2(d). However, we are first “obligated to review that record [to]
ascertain[] whether the certifications [are] defective.” Dears v. State, 154 S.W.3d 610, 615 (Tex.
Crim. App. 2005). A certification is “defective” if it “proves to be inaccurate” “when compared
with the record.” Id. at 614.

Appellant pled guilty to the underlying offense and a jury found him guilty. Nothing in
the record indicates a plea agreement or a waiver of the right to appeal. However, the trial
court’s certification indicates appellant waived his right to an appeal. Although the certification
appears to be inaccurate, and therefore defective, this appeal may not proceed on the merits in
the absence of a certification by the trial court that appellant has the right of appeal. See TEX. R.
APP. P. 25.2(d). To “ensur[e] that [appellant’s] right to appeal is not abridged due to ‘defects or
irregularities’ which can be corrected,” we ABATE this appeal for a period of ten days to allow
the trial court to review the record and to either (1) submit an amended Rule 25.2 certification
that comports with the record or (2) direct the trial court clerk to file a supplemental clerk’s
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record that evidences the appellant waived his right to appeal. See Dears, 154 S.W.3d at 614-
15; TEX. R. APP. P. 34.5(c), 37.1. We ORDER the clerk to file a supplemental record containing
any amended certification signed by the trial court and/or a record showing appellant waived his
right to appeal not later than August 24, 2021.

We ORDER the clerk of this court to serve copies of this order on the attorneys of record,
the trial court judge, and the trial court clerk.

_________________________________
Lori I. Valenzuela, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 9th day of August, 2021.

___________________________________
MICHAEL A. CRUZ, Clerk of Court