in Re Tommy Dominguez, Relator

                                  NO. 07-10-00451-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 DECEMBER 29, 2010


                           CLARENCE CERF, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                 NO. 55,527-C; HONORABLE ANA ESTEVEZ, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                       ORDER OF ABATEMENT AND REMAND


      On October 28, 2010, appellant, Clarence L. Cerf, filed a notice of appeal from a

judgment entered by the 251st District Court of Potter County, Texas, in cause number

55,527-C. In this notice, appellant “declares” that he is entitled to proceed without cost

under Texas Rule of Appellate Procedure 20.2. Appellant did not, however, include an

affidavit of indigency with his notice of appeal. However, we construe this declaration to

be a request that the appellate record be furnished to appellant without charge. On this

basis, we now abate and remand this cause.


      Upon remand, the judge of the trial court is directed to immediately cause notice

to be given of and to conduct a hearing to determine: (1) whether appellant desires to
prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether

appellant is indigent; (3) if appellant is indigent, whether appellant desires to be

appointed representation on appeal.        If the trial court determines that appellant is

indigent, we further direct the trial court to order the clerk and reporter to prepare the

record and to provide the same to appellant or appellant’s counsel. Finally, if the trial

court determines that counsel should be appointed to represent appellant on appeal, the

court should cause the Clerk of this Court to be furnished the name, address, and State

Bar of Texas identification number of the newly-appointed attorney.


       Further, the Criminal Information Sheet filed by the deputy clerk in this case

indicates that the trial court has not entered a certification of defendant’s right of appeal.

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, 

 (Tex.Crim.App. 2006). An appeal must be dismissed if a certification that shows

the defendant has the right of appeal has not been made part of the record under the

applicable rules.    TEX. R. APP. P. 25.2(d); Dears v. State, 

(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,




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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. 1


       As it appears that no certification of defendant’s right of appeal has been entered

in this case, on remand, we direct the trial court to utilize whatever means necessary to

secure a certification of defendant=s right of appeal that complies 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 February 15, 2011.


       This order constitutes notice to all parties of the absence of a 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).


       On remand, the trial court is directed to: (1) conduct any necessary hearings; (2)

make and file appropriate findings of fact, conclusions of law, and recommendations

and cause them to be included in a supplemental clerk=s record; (3) cause the hearing

proceedings to be transcribed and included in a supplemental reporter=s record; (4)

have a record of the proceedings made to the extent any of the proceedings are not

included in the supplemental clerk=s record or the supplemental reporter=s record; and

(5) cause the records of the proceedings to be sent to this Court. In the absence of a

request for extension of time from the trial court, the supplemental clerk=s record,

       1
        The proper form for Certification of Defendant=s Right of Appeal is contained in
Appendix D of the Texas Rules of Appellate Procedure.

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supplemental reporter=s record, and any additional proceeding records, including any

orders, findings, conclusions, and recommendations, are to be sent so as to be received

by the Clerk of this Court not later than February 15, 2011.


                                                Per Curiam


Do not publish.




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