                                  NO. 07-08-0040-CR
                                  NO. 07-08-0041-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                     APRIL 8, 2008

                         ______________________________


                      JOSHUA MCCABE SUTTON, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

           NOS. 55,347-A & 55,348-A; HONORABLE HAL MINER, JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                             ABATEMENT AND REMAND


      Pursuant to open pleas of guilty, Appellant, Joshua McCabe Sutton, was convicted

of delivery of a controlled substance.     Punishment was assessed at eight years

confinement in each case. The Trial Court’s Certifications of Defendant’s Right of Appeal

have two options checked: (1) “[i]s a plea-bargain case, and the defendant has NO right
of appeal,” and (2) “[t]he defendant has waived the right of appeal.” Additionally, the

certifications include a handwritten notation that defendant “retains right of appeal on

punishment issues.” As prepared, the certifications in these cases are confusing and

defective. Nothing in Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure limits a

defendant’s right to appeal a case in which the defendant enters an open plea of guilty, i.e.,

without a recommendation on punishment, to punishment issues only. See Dears v. State,

154 S.W.3d 610, 613 (Tex.Crim.App. 2005).


       Consequently, we abate these appeals and remand the causes to the trial court for

further proceedings. Upon remand, the trial court shall utilize whatever means necessary

to secure proper Certifications of Defendant’s Right of Appeal in compliance with Rule

25.2(d).1 Once properly completed and executed, the certifications shall be included in a

supplemental clerk’s record. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause

this supplemental clerk's record to be filed with the Clerk of this Court by May 19, 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).




       1
         Effective September 1, 2007, Rule 25.2(d) was amended. The proper form to use
in certifying a defendant’s right of appeal can be found at Appendix D to the 2008 Texas
Rules of Appellate Procedure.

                                               2
       Should the trial court certify that Appellant has the right of appeal, it should also

determine the following:


       1.     whether Appellant desires to prosecute the appeal; and
       2.     whether Appellant is indigent and entitled to appointed counsel.


Should it be determined that Appellant has the right of appeal and desires to continue the

appeal and the court determines that he is indigent and entitled to appointed counsel, the

name, address, telephone number, and state bar number of the newly-appointed counsel

shall be provided to the Clerk of this Court. In that situation, the trial court shall cause its

findings, conclusions, and orders, if any, to also be included in a supplemental clerk's

record. Finally, the trial court shall cause this supplemental clerk's record to be filed with

the Clerk of this Court by May 19, 2008.


       Pending before this Court is a motion for extension of time in which to file the clerk’s

record in which the clerk indicates that Appellant has not paid nor made arrangements to

pay for the record. The motion also indicates that Appellant is proceeding pro se. We

defer ruling on this motion pending receipt of the supplemental clerk’s record containing

the corrected certification of Appellant’s right to appeal.


       The reporter’s record was due to be filed by March 20, 2008. The Court sua sponte

suspends this deadline pending receipt of the supplemental clerk’s record containing the

corrected certifications of Appellant’s right to appeal.



                                               3
      It is so ordered.


                              Per Curiam


Do not publish.




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