                                     NO. 07-08-0173-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                    MAY 27, 2008
                           ______________________________

                            NATALIE A. GARCIA, APPELLANT

                                               V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

        FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

               NO. 2007-444,591; HONORABLE DRUE FARMER, JUDGE
                        _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                        ORDER ON ABATEMENT AND REMAND


       Appellant, Natalie Garcia, appeals her conviction and sentence for the offense of

driving while intoxicated. Because of conflicting trial court certifications filed in this cause,

we abate and remand to the trial court for clarification.


                                         Background


       Appellant was charged with the offense of driving while intoxicated. From the trial

court clerk’s record and the court reporter’s record, both filed with this court, it appears that
appellant had a jury trial on March 12-13, 2008, in which the jury found appellant guilty of

the offense. The trial court ordered a presentence investigation report and continued the

case until April 10. On April 10th, the trial court held a punishment hearing and sentenced

appellant. The trial court clerk’s record contains two trial court certifications of appellant’s

right to appeal, both file-marked on April 11, 2008. The first certification dated March 12,

2008, certifies that the criminal case is not a plea-bargain case, and that appellant has the

right to appeal. The second certification dated April 10, 2008 certifies that the criminal

case is a plea-bargain case and that appellant has no rights of appeal.


       According to Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure, the trial

court is required to enter a certification of a defendant’s right to appeal. TEX . R. APP. P.

25.2(a)(2).   A certification that does not comport to the record may be considered

defective. Dears v. State, 154 S.W.3d 610, 613 (Tex.Crim.App. 2005). If the appellate

court determines that the certification is defective, the clerk must notify the parties so that

the defect can be remedied.        Id.   An appellate court has the ability to examine a

certification for defectiveness, and to use Rules 37.1 and 34.5(c) to obtain another

certification, whenever appropriate. Id. at 614. Although an appellate court may require

a trial court to certify whether appellant has the right to appeal, the appellate court may not

dictate the contents of the certification. Greenwell v. Court of Appeals for Thirteenth

Judicial Dist., 159 S.W.3d 645, 650 n.24 (Tex.Crim.App. 2005).


       In this matter, we are faced with two conflicting certifications with the latest

certification concluding that appellant has no rights of appeal. By our examination of the



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record, the second certification does not comport to the record and is, thus, defective.

Dears, 154 S.W.3d at 613. We therefore, abate and remand this matter to the trial court.


       Upon remand, the trial court shall immediately cause notice of a hearing to be given,

if necessary, and, thereafter conduct a hearing to determine if appellant has the right of

appeal. The trial court shall execute a certification of appellant’s right of appeal and

findings of fact and conclusions of law regarding the aforementioned issue and cause its

findings and conclusions to be included in a supplemental clerk's record. TEX . R. APP. P.

34.5(c). A supplemental record of the hearing, if held, shall also be included in the

appellate record. Finally, the trial court shall file the supplemental clerk's record and the

supplemental reporter's record with the Clerk of this Court by June 27, 2008.


       It is so ordered.




                                                  Per Curiam




Do not publish.




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