Abatement Order filed November 14, 2013.




                                      In The

                    Fourteenth Court of Appeals
                                  ____________

                              NO. 14-13-00038-CR
                                ____________

              FREDERICK ANTHONY MITCHELL, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1333266

                            ABATEMENT ORDER

      Appellant was indicted for promotion of child pornography. On November
12, 2012, appellant pleaded guilty to the charged offense. The trial court entered
the plea and signed an order certifying that appellant had no right of appeal. The
case was then reset for sentencing on January 7, 2013.

      At the next hearing, the trial court deferred an adjudication of guilt and
placed appellant on community supervision for a period of ten years. One
condition of appellant’s community supervision provides that he must submit to a
                                         1
program of psychological and physiological assessment at the direction of his
community supervision officer. By the terms of the trial court’s order, the program
may include polygraph or plethysmograph testing. At the request of appellant’s
defense counsel, the trial judge stated that she would amend the certification and
allow a limited appeal on the basis of “just the polygraph condition of that sex
offender caseload.” Appellant then objected to the requirement that he submit to
either a polygraph or plethysmograph examination, citing Leonard v. State, 385
S.W.3d 570 (Tex. Crim. App. 2012). The trial court overruled this objection,
stating that appellant was permitted to appeal “the use of the polygraph as a
condition of sex offender caseload alone.”

      The clerk’s record contains an amended certification of appellant’s right to
appeal, filed on January 7, 2013. This amended certification contains handwritten
notations reflecting that appellant was given the right of appeal “limited to a
condition of probation—use of polygraph as a condition of sex offender caseload.”
The trial court’s amended certification is unsigned and it does not expressly
authorize an appeal of the plethysmograph condition of appellant’s community
supervision. See Appendix.

      Appellant filed a notice of appeal on January 11, 2013, challenging both the
polygraph and plethysmograph conditions of his community supervision. In plea-
bargain cases, such as this one, the record must contain a certification showing that
the defendant has permission to file the appeal. See Tex. R. App. P. 25.2. This
Court has determined that the amended certification is defective because it is not
signed. When the certification of a defendant’s right to appeal is defective, this
court must afford a reasonable time for the defect to be remedied. See Tex. R. App.
P. 37.1; Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). Therefore,
we remand this case and order the trial court to review the record, confirm the

                                         2
scope of appeal, and file a proper certification of appellant’s right of appeal. The
trial court shall specifically clarify whether appellant may challenge the condition
of his community supervision requiring him to submit to plethysmograph testing.
The signed certification, along with any other related records, shall be filed with
the Clerk of this Court in a supplemental clerk’s record no later than December 16,
2013. See Tex. R. App. P. 37.1.

      We abate this appeal, treat it as a closed case, and remove it from this
Court’s active docket. The appeal will be reinstated on this Court’s active docket
when the signed certification is filed with the Clerk of this Court.

      It is so ORDERED.



                                   PER CURIAM



Panel consists of Justices Christopher, Donovan, and Brown.




                                          3
                                  APPENDIX

“Trial Court’s Certification of Defendant’s Right of Appeal” filed January 7, 2013




                                        4
                                    O                                               ©
THE STATE OF TEXAS                                                       IN THE "~ ’~-/ DISTRICT COURT

                                                                         COUNTY CRIMINAL COURT AT LAW No.

                                                                         HARRIS COUNTY, TEXAS


          TRIAL COURT’S CERTIFICATION OF DEFENDANT’S RIGHT OF APPEAL*
I, judgeof the trial court, certify this criminal case:
              is not a plea-bargain case, and the defendant has the fight of appeal. [or]
              is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial, and
              not withdrawn or waived, and the defendant has the right of appeal. [or]
              is a plea-bargain case, but the trial cqurt has given permission to appeal, and the defendant has the
              right of appeal. [or] [ ~ I~ l’r’~D’-~ P...        ~ ~ ~ I ~ O~,.) z$ p: P I~.O E~ ~ TI e~l" 0S~ O~
              is a plea-bargain case., and the .defendant has NO right of appeal. [or]                 "~ ~ "~. D ~l.~af.~fl ~.
                                                                                                                           ONOrCtoN a:
              the defendant has waived the right of appeal,                                            i.ChnS
                                                                                                       DiStrict G~et~



Judge                                                                Date Signed

I have received a copy of this certification. I have also been informed of my concem~ng any appeal of
this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the
Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of
appeals’s judgment and opinion to my last known address and that I have only 30 days ~n which to file a pro se
petition for discretionary review in the Court of Criminal Appeals. TEX. R. APP. P. 68.2 I acknowledge that, if I
wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written
communication, of any change in the address at which I am currently living or any change in my current prison
unit. I understand that, because of.appellate deadlines, if I fail to timely inform my appellate attorney of any
change in my address, I may lose the opportunity to file a pro se petition for discretionary review.



Defendant                                                            Defendant’s Counsel




                                                                     Fax number (if any): "7

* "A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant’s
right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in
which a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant - a defendant may appeal only: (A) those matters that were raised by a written motion filed
and ruled on before trial, or (B) after getting the trial court’s permission to appeal." TEXAS RULES OF APPELLATE PROCEDURE
25.2(a)(2).
                                                             CLERK
                                                                                                                9/1/2011
