COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Marlon Windon v. The State of Texas
Appellate case number: 01-18-00500-CR
Trial court case number: 1535144
Trial court: 180th District Court, Harris County, Texas
In our October 5, 2019 abatement order, we questioned whether appellant had
waived the right to appeal. In its findings signed on September 26, 2019 and filed in this
Court on October 7, 2019, the trial court found that appellant did not waive the right to
appeal. Although our October 5, 2019 abatement order requested the trial court to file an
amended certification of defendant’s right of appeal, if necessary, an amended certification
has not been filed.
On July 7, 2020, we issued an order of continuing abatement, again ordering the
trial court to execute an amended certification of appellant’s right to appeal. The trial
court has yet to file an amended certification.
The trial court’s certification of the appellant’s right of appeal is defective. The
certification states that appellant waived the right to appeal, but, as demonstrated in this
court’s previous orders and the trial court’s finding, the record contradicts the certification
and shows that appellant has a right to appeal.
The Rules of Appellate Procedure require us to dismiss an appeal unless a
certification showing that the appellant has the right to appeal has been made part of the
record. See TEX. R. APP. P. 25.2(a)(2). The rules also provide that an amended trial
court’s certification of the appellant’s right to appeal correcting a defect or omission may
be filed in the appellate court. See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1. Therefore,
either the trial court must execute an amended certification showing that appellant has the
right of appeal, or we must dismiss this appeal despite the fact that appellant has the right
to appeal.
Accordingly, we abate this appeal and remand the cause to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing within 20 days of the date
of this order at which a representative of the Harris County District Attorney’s Office and
appellant’s counsel, Melissa Martin, shall be present. Appellant shall also be present for
the hearing in person or, if appellant is incarcerated, at the trial court’s discretion, appellant
may participate in the hearing by use of a closed-circuit video teleconferencing system that
provides for a simultaneous compressed full motion video and interactive communication
of image and sound.1
We direct the trial court to:
1) Execute an amended certification of appellant’s right to appeal.
See TEX. R. APP. P. 25.2(f), 34.5(c).
The trial court shall have a court reporter, or court recorder, record the hearing. The
trial court clerk is directed to file a supplemental clerk’s record containing the trial court’s
amended certification of appellant’s right to appeal with this Court within 25 days of the
date of this order. The court reporter is directed to file the reporter’s record of the hearing
within 25 days of the date of this order. If the hearing is conducted by video
teleconference, a certified recording of the hearing shall also be filed in this Court within
25 days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when records that
comply with our order are filed with the Clerk of this Court. The court coordinator of the
trial court shall set a hearing date and notify the parties.
It is so ORDERED.
Judge’s signature: ______/s/ Sherry Radack_______
Acting individually Acting for the Court
Date: ___October 21, 2021_____
1 On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded
or heard by the trial court or the attorney representing the State.
2