                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                          ORDER

Appellate case name:        John Daniel Brooks v. The State of Texas

Appellate case number:      01-15-00062-CR

Trial court case number:    330063

Trial court:                263rd District Court of Harris County

        Appellant, John Daniel Brooks, was convicted of the offense of aggravated capital
murder in June 1981. Brooks subsequently requested post-conviction DNA testing and
the trial court appointed Kelly Ann Smith as counsel for Brooks. On November 20,
2014, Smith filed a motion to withdraw as counsel, contending Brooks could not meet the
requirements of Chapter 64 and was not entitled to DNA testing.
          On November 20, 2014, the trial court granted Smith’s motion, and entered an
order denying Brooks’ request for post-conviction DNA testing. On December 24, 2014,
Brooks filed a notice of appeal. This notice is considered timely filed under Texas Rule
of Appellate Procedure 9.2(b).
        The clerk’s record was filed in this Court on January 16, 2015. The record
contained a certification of the defendant’s right of appeal that was signed, but did not
indicate whether the defendant had the right of appeal. Accordingly, we issued notice to
the trial court of the incomplete certification. On October 2, 2015, a supplemental clerk’s
record was filed containing a certification indicating that the defendant waived his right
of 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 defendant’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. Further, when
we have a record, we are obligated to review the record to ascertain whether the
certification is defective and, if it is defective, we must use Rules 37.1 and 34.5(c) to
obtain a correct certification. Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App.
2005); see TEX. R. APP. P. 34.5(c), 37.1.
        We have reviewed the record to determine if the record supports the trial court’s
certification and it appears that Brooks has the right of appeal. Article 64.05 of the Code
Criminal Procedure allows appeal of an order concerning post-conviction DNA testing
and nothing in the record indicates Brooks waived his right of appeal.
        We, therefore, 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, if any, 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 execute an amended certification of appellant’s right to
appeal, to make any other findings and recommendations the trial court deems
appropriate; and to enter written findings of fact, conclusions of law, and
recommendations as appropriate, separate and apart from any docket sheet notations. See
TEX. R. APP. P. 25.2(f).
        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 findings, recommendations, and orders 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/ Rebeca Huddle
                    Acting individually         Acting for the Court

Date: October 13, 2015




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.
