DAYMON LAMAR JOHNS APPELLANT v. THE STATE OF TEXAS APPELLEE (2010)

ABATEMENT AND REMAND

In exchange for a guilty plea, in 2007, Appellant, Daymon Lamar Johns, was convicted in cause number 56,483-E of evading arrest with a vehicle and sentenced to two years confinement and a $1,000 fine.¹  Appellant's sentence was suspended in favor of five years community supervision.   In 2009, in exchange for a guilty plea, in cause number 58,725-E, Appellant was granted deferred adjudication community supervision for five years for possession of a controlled substance in a drug-free zone.²  On March 19, 2010, the State filed an Amended Motion to Revoke Order for Community Supervision in cause number 56,483-E and an Amended Motion to Proceed with Adjudication of Guilt on Original Charge in cause number 58,725-E alleging violations of the terms and conditions of community supervision.   Appellant entered pleas of true in both causes and the trial court revoked community supervision and sentenced Appellant to two years in a state jail facility plus a $1,000 fine in cause number 56,483-E.   The trial court also adjudicated Appellant guilty of possession of a controlled substance in a drug-free zone and sentenced him to nine years confinement and a $1,000 fine in cause number 58,725-E.   The trial court ordered the sentence in cause number 56,483-E to run consecutively to the sentence in cause number 58,725-E.

When the clerks' records were filed on August 17, 2010, it came to the Courts attention that the record in cause number 58,725-E did not contain a Trial Courts Certification of Defendants Right of Appeal as required by Rule 25.2(a)(2) and (d) of the Texas Rules of Appellate Procedure and that the record in cause number 56,483-E contained two separate certifications, neither of which is signed by Appellant as required by Rule 25.2(d).³

Consequently, we abate this appeal and remand this cause to the trial court for further proceedings.   Upon remand, the trial court shall utilize whatever means necessary to secure a proper Trial Courts Certification of Defendants Right of Appeal in compliance with Rule 25.2(d) in each cause referenced herein.   Once properly completed and executed, the certifications shall be included in supplemental clerks' records.   See Tex.R.App. P. 34.5(c)(2).   The trial court shall cause the supplemental clerks' records to be filed with the Clerk of this Court by September 29, 2010.   This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certifications.   If supplemental clerks' records containing proper certifications are not filed in accordance with this order, these causes will be referred to the Court for dismissal.   See Tex.R.App. P. 25.2(d).

It is so ordered.

Do not publish.

FOOTNOTES

FN1. Tex. Penal Code Ann. § 38.04(b)(1)(B) (Vernon Supp.2009)..  FN1. Tex. Penal Code Ann. § 38.04(b)(1)(B) (Vernon Supp.2009).

FN2. Tex. Health & Safety Code Ann. § 481.134 (Vernon 2010)..  FN2. Tex. Health & Safety Code Ann. § 481.134 (Vernon 2010).

FN3. As of September 1, 2007, a defendant must sign and receive a copy of the certification..  FN3. As of September 1, 2007, a defendant must sign and receive a copy of the certification.

Per Curiam