Ex Parte Austin Lyman Bishop ( 2017 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Ex parte Austin Lyman Bishop
Appellate case number: 01-17-00923-CR
Trial court case number: 17486A
Trial court: 21st District Court of Washington County
Appellant, Austin Lyman Bishop, has filed a notice of appeal of the trial court’s
denial of his application for a writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN.
art. 11.072 (West Supp. 2017). The clerk’s record was filed in this Court on December
13, 2017. The clerk’s record, however, does not include a signed, written order denying
appellant’s requested habeas relief or written findings of fact and conclusions of law.
And, the clerk’s record does not include a copy of the trial court’s certification of
appellant’s right of appeal. See TEX. R. APP. P. 34.5(a)(12), 37.1.
Accordingly, we abate the appeal and remand the case to the trial court for
appellant to obtain, from the trial court, a signed, written order on his application for a
writ of habeas corpus and for the trial court to enter written findings of fact and
conclusions of law, separate and apart from any docket sheet notations in this case, in
conjunction with the denial of appellant’s application for a writ of habeas corpus. See
TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a) (“If the court determines from the face
of the application or documents attached to the application that the applicant is manifestly
entitled to no relief, the court shall enter a written order denying the application as
frivolous. In any other case, the trial court shall enter a written order including findings
of fact and conclusions of law.”).
We further direct the trial court to execute a certification of appellant’s right to
appeal that complies with Texas Rule of Appellate Procedure 25.2(d) and indicates
whether appellant has the right to appeal.1 See TEX. R. APP. P. 25.2(a)(2), (d). This Court
1 The clerk’s record includes appellants “Notice of Appeal and Request for Certification of
Right to Appeal” with the trial court’s handwritten and signed note, “[i]f Court Appeals
requests a certification of right to appeal, I will comply.”
must dismiss the appeal “if a certification that shows the defendant has a right of appeal
has not been made part of the record under these rules.” Id. 25.2(d), 37.1; Ex parte
Tarango, 116 S.W.3d 201, 203 (Tex. App.—El Paso 2003, no pet.). However, the Texas
Rules of Appellate Procedure prohibit us from dismissing an appeal based on the lack of
a valid certification when we determine that an appellant has a right of appeal. See TEX.
R. APP. P. 25.2(f), 37.1, 44.4.
The trial court clerk is directed to file a supplemental clerk’s record containing (1)
the certification of appellant’s right of appeal, (2) any signed order on appellant’s
application for a writ of habeas corpus, (3) the trial court’s findings of fact and
conclusions of law in conjunction with the denial of appellant’s application for a writ of
habeas corpus, and (4) any other findings or recommendations the trial court deems
appropriate. The supplemental clerk’s record shall be filed with this Court no later than
30 days from the date of this order. See TEX. R. APP. P. 34.5(c) (2).
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, complying with this order, is filed with the Clerk of this
Court.
It is so ORDERED.
Judge’s signature: /s/ Russell Lloyd
 Acting individually  Acting for the Court
Date: December 28, 2017