
NO. 07-07-0429-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 1, 2008

______________________________


JERRY DALE MORGAN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 06-10-6323; HONORABLE PAT PHELAN, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
          Following a plea of not guilty, Appellant, Jerry Dale Morgan, was convicted by a jury
of driving while intoxicated, enhanced, and sentenced to life in prison.  The clerk’s record
was filed on November 19, 2007.  
          Texas Rules 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.  Hargesheimer v. State, 182 S.W.3d 9063, 911 (Tex.Crim.App.
2006).  An appeal must be dismissed if the certification has not been made part of the
record under the applicable rules.  Tex. R. App. P. 25.2(d).  An appellate court that has an
appellate record is obligated to review that record in order to ascertain whether the
certification is defective.  Dears v. State, 154 S.W.3d 610, 615 (Tex.Crim.App. 2005).  
Upon consideration of Appellant’s Fourth Motion for Extension of Time to File Appellant’s
Brief, we reviewed the clerk’s record to determine whether a proper certification was on file. 
          Pursuant to an amendment to Rule 25.2(d) of the Texas Rules of Appellate
Procedure, 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. 
Additionally, the certification shall include a notice that the defendant has been informed
of his rights concerning appeal, as well as any right to file a pro se petition for discretionary
review.
  In this case, although sentence was imposed on July 18, 2007, the Certification
of Defendant’s Right of Appeal was not executed by the trial court until November 18,
2007.  Because Rule 25.2(d) is a procedural rule, the rule in effect at the time of the
execution of the certification applies.  Wilson v. State, 473 S.W.2d 532 (Tex.Crim.App.
1971).  
          The certification contained in the clerk’s record does not contain the defendant’s
signature.  Furthermore, it does not reflect whether a copy of the certification was given to
the defendant, nor does it indicate whether the defendant was given the required
admonishments.  Therefore, the certification on file is defective. 
          Consequently, we abate this appeal and remand the cause to the trial court for
further proceedings.  Upon remand, the trial court shall utilize whatever means necessary
to secure a Certification of Defendant’s Right of Appeal in compliance 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 June 16, 2008.
          This order constitutes notice  to all parties of the defective certification pursuant to
Rule 37.1 of the Texas Rules of Appellate Procedure.  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). 
          Additionally, Appellant’s fourth motion for extension of time is granted.  Appellant’s
brief is due on or before June 16, 2008.
          It is so ordered. 
                                                                                      Per Curiam
