TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00127-CR

In re Johnny Ray Valchar

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT NO. 95-522-K277, HONORABLE JACK R. MILLER, JUDGE PRESIDING

MEMORANDUM OPINION PER CURIAM This is an appeal from an order denying post-conviction forensic DNA testing. The trial court has certified that (1) this is a plea-bargain case and appellant has no right of appeal and (2) appellant waived his right of appeal. Apparently, this certification reflects what happened at appellant’s original trial.

The appellate rules require the trial court to certify the defendant’s right of appeal each time it enters a judgment or other appealable order. Tex. R. App. P. 25.2(a)(2). The denial of a motion for forensic DNA testing is an appealable order. Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006). It is the right of appeal from this order that must be certified. We conclude that the trial court’s certification is inaccurate and, therefore, defective. See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005).

The appeal is abated. The trial court is instructed to prepare and file an amended certification stating that this is not a plea-bargain case, and the defendant has the right of appeal. A supplemental clerk’s record containing the court’s amended certification shall be forwarded to the Clerk of this Court no later than December 18, 2009. See id.; Tex. R. App. P. 37.1.1

Before Justices Patterson, Puryear and Pemberton Abated Filed: December 1, 2009 Do Not Publish

Valchar’s motion for summary judgment is overruled.