The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Joshua London v. The State of Texas
Appellate case number: 01-13-00441-CR
Trial court case number: 1367861
Trial court: 230th District Court of Harris County
The record in this appeal does not clearly indicate whether the appellant has the right to
appeal. The clerk’s record received by this Court contains two certifications. One certification
is signed by appellant and his attorney but not the trial court judge, and indicates that the
appellant has waived the right to appeal. The clerk’s record does not otherwise clearly show a
waiver of the right to appeal by appellant, but it is possible that appellant waived the right to
appeal in open court after sentencing or in exchange for some concession from the State.1
However, because this certification is not signed by the trial court judge, we cannot apply a
presumption of regularity to this document. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex.
Crim. App. 1984); McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975). A second
certification appears in the clerk’s record, signed by the trial court judge, but has no box checked
and therefore does not indicate anything about the appellant’s right to appeal. The Rules of
Appellate Procedure require that a certification from the trial court of the appellant’s right to
appeal be filed in every criminal case in which the trial court enters a judgment or other
appealable order. See TEX. R. APP. P. 25.2(a)(2).
Accordingly, we abate this appeal and remove it from this Court’s active docket.
We direct the trial court to conduct a hearing at which a representative of the Harris
County District Attorney’s Office and appellant’s trial counsel, Charles A. Brown, Jr., shall be
1 The clerk’s record indicates that appellant waived the right to have the court reporter
record his plea. The court reporter has notified this Court that no record was taken in the
underlying case.
present. Appellant shall also be present for the hearing in person. If appellant is now
incarcerated, he may appear by closed video teleconference.2
At the hearing, the trial court shall make a written finding regarding whether appellant
waived his right to appeal. This finding must be contained in a written order, and not a docket
sheet entry. The trial court shall also complete a new certification of the appellant’s right to
appeal. The certification must be signed by the trial court judge, appellant, and appellant’s
counsel. If the trial court determines that the appellant has the right to appeal, the trial court shall
enter a written order appointing appellate counsel.
The trial court shall have a court reporter record the hearing, and a reporter’s record of
the hearing shall be filed in this court within 30 days of the date of this order. A supplemental
clerk’s record containing the trial court’s written findings and order and a completed certification
of appellant’s right to appeal shall be filed with the Clerk of this Court within 30 days of the
date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record and reporter’s record of the abatement hearing are filed in this Court. The court
coordinator of the trial court shall set a hearing date and notify the parties of such date.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
Acting individually Acting for the Court
Date: ___July 17, 2013___________________
2 Any such teleconference must use a closed-circuit video teleconferencing system that
provides for a simultaneous compressed full motion video and interactive communication
of image and sound between the trial court, appellant, and any attorneys representing the
State or appellant. On request, appellant and his counsel shall be able to communicate
privately without being recorded or heard by the trial court or the attorney representing
the State.