                                 NO. 07-09-0375-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                 JANUARY 7, 2010
                         ______________________________

                  CARLOS BARRIENTOS MARTINEZ, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

                 NO. 2690; HONORABLE KELLY G. MOORE, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                             ABATEMENT AND REMAND


      In accordance with a plea bargain, appellant, Carlos Barrientos Martinez, was

convicted of possession of a controlled substance, cocaine, in an amount less than one

gram and sentenced to two years incarceration in the Institutional Division of the Texas

Department of Criminal Justice and $1,000 fine. However, the sentence of confinement

was suspended and appellant was placed on community supervision for a period of five

years. The clerk’s record was filed on December 28, 2009.
       Texas Rule 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. TEX . R. APP. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911

(Tex.Crim.App. 2006). An appeal must be dismissed if a certification that shows the

defendant has the right of appeal 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

that includes a certification is obligated to review the record to ascertain whether the

certification is defective. Dears v. State, 154 S.W.3d 610, 615 (Tex.Crim.App. 2005).


       Pursuant to an amendment to Rule 25.2(d), 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. TEX . R. APP. P. 25.2(d). Additionally, the certification

shall include a notice that the defendant has been informed of his rights concerning appeal,

as well as his right to file a pro se petition for discretionary review.1


       The certification contained in the clerk’s record does not contain the defendant’s

signature. As such, 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



       1
       The proper form for Certification of Defendant’s Right of Appeal is contained in
Appendix D of the 2008 Texas Rules of Appellate Procedure.

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to secure a certification of defendant’s right of appeal that complies 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 February 1, 2010.


       This order constitutes notice to all parties of the defective certification pursuant to

Rule 37.1 of the Texas Rules of Appellate Procedure. See TEX . R. APP. P. 37.1. 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).


       It is so ordered.


                                                         Per Curiam




Do not publish.




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