# Fourth Court of Appeals

San Antonio, Texas

February 9, 2017

No. 04

- 16

- 00670

- CR

Noe CONTRERAS, Appellant

v.

The STATE of Texas, Appellee

From the 79th Judicial District Court, Jim Wells County, Texas

Trial Court No. 15

- 08

- 14189

- CR Honorable Richard C. Terrell, Judge Presiding



### O R D E R

The clerk’s record was filed in this court on November 30, 2016 and includes a Plea Memorandum, reflecting that appellant Noe Contreras pled guilty to two counts of indecency with a child. The record also contains a copy of the Judgment of Conviction, wherein appellant was sentenced to fifteen years confinement in the Texas Department of Criminal Justice

– Institutional Division. However, the clerk’s r ecord does not contain a copy of the trial court’s certification of defendant’s right of appeal as required by the Texas Rules of Appellate

Procedure. See T EX

. R. A PP

. P. 25.2(a)(2), (d).

A clerk’s record in criminal cases must include the trial court’ s certification of defendant’s right of appeal. T EX

. R. A PP

. P . 34.5(a)(12). Texas Rule of Appellate Procedure 25.2(a)(2) requires the trial court to sign a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order. Rule 25.2(d) requires the clerk’s record to include the trial court’s certification of the defendant’s right of appeal under Rule 25.2(a)(2). T EX

. R. A PP

. P. 25.2(d). Although this certification “should be part of the record

when notic e is filed,” it “may be added by timely amendment or supplementation under this rule or . . . by order of the appellate court under Rule 34.5(c)(2).” T EX

. R. A PP

. P. 25.2( d); see also

T EX

. R. A PP

. P. 34.5(c)(2) (explaining that “[i ]f the appellate court in a criminal case orders the trial court to prepare and file . . . [a] certification of the defendant’s right of appeal as required by these rules, the trial court clerk must prepare, certify, and file in the appellate court a suppl emental clerk’s record”). If a certification showing the defendant has the right to appeal is not made part of the record under these rules, the appeal must be dismissed. T EX

. R. A PP

. P. 25.2(d).We therefore ordered the trial court to sign a certific ation, if one had not yet been signed,

on or before February 6, 2017. We further ordered the Jim Wells County District C lerk to file a supplemental clerk’s record containing the signed trial court’s certification of defendant’s right of appeal on or befor e February 14, 2017

. On February 3, 2017, the Jim Wells County District Clerk filed a supplemental clerk’s record with a certification signed by th e trial court. In the certification, the box “the defendant has waived the right of appeal” was checked. H owever, the certification was not signed by the defendant, nor did the certification reflect whether a copy of the certification was provided to the defendant. Rule 25.2(d) requires the certification to be signed by the defendant and a copy to be provided to the defendant. Accordingly, the trial
court’s certification is defective. 1

We therefore ORDER the trial court to correct the defect ive certification on or before February 20, 2017 . We further ORDER the Jim Wells County District Clerk to file a

sup plemental clerk’s record containing the corrected certification of defendant’s right of appeal

on or before March 1, 2017

.

_________________________________ Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said

court on this 9th day of February, 2017

.

___________________________________ Keith E. Hottle

Clerk of Court

1 We recognize that along with the signed certification, the supplemental clerk’s record included a letter from the trial court acknowledging that the document would not contain the defendant or his counsel’s signature. Nevertheless, the trial court shall utilize whatever means necessary to secure a certification in compliance with Rule 25.2(d).