


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00360-CR
 
Cheyenne Pate,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 

From the 77th District Court
Limestone County, Texas
Trial Court No. 8660-A-1
 

DISSENT to abatement order





 
            For the reasons expressed in Mullins
v. Ortiz, No. 10-08-00225-CV, 2009 Tex. App. Lexis 3578 (Tex. App.—Waco April 29, 2009, order) (Gray, C.J. dissenting), I dissent.  Specifically, having
determined that we have no jurisdiction, we have no authority to render any
type order other than a dismissal.  The method by which we can properly proceed
is a letter that puts the parties and the trial court on notice of the lack of
jurisdiction and the consequences thereof if not corrected.
            What follows is the letter that I
believe is appropriate:
Pursuant to Rule 44.3 of the Texas Rules of
Appellate Procedure, you are notified that this appeal is subject to dismissal
for want of jurisdiction because it appears there is no signed order from which
to appeal.  See Tex. R. App. P.
26.2(a)(1) (“notice of appeal must be filed…after the day the trial court
enters an appealable order…”).
 
Therefore, the Court will dismiss this appeal
unless, within 21 days of the date of this letter, a response is filed showing
grounds for continuing the appeal.
 
Further, rule 25.2 of the Texas Rules of Appellate
Procedure provides that a “trial court shall enter a certification of the
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) (emphasis added).  There is no certification of the defendant’s
right of appeal in the record.
 
Subject to the Court’s determination of its
jurisdiction, the Court will dismiss this appeal unless, within 28 days of the
date of this letter, a certification showing the defendant’s right of appeal is
made a part of the record and simultaneously presented to this Court.
 
            I recognize that either the order or
notice may result in the parties taking the same corrective action.  But we
have authority to do one and not the other.  Because the Court chooses to
render an order without jurisdiction, I respectfully dissent.
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
Dissent
to abatement order issued and filed March 10, 2010

