Bradley Graham v. State

Opinion

ACCEPTED

12-15-00160-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

10/28/2015 2:48:03 PM

Pam Estes

CLERK

NO. 12-15-00160-CR FILED IN 12th COURT OF APPEALS

TYLER, TEXAS

ON APPEAL FROM THE 217TH JUDICIAL DISTRICT COURT 10/28/2015 2:48:03 PM

ANGELINA COUNTY, TEXAS

CAUSE NO. 2011-0160 PAM ESTES Clerk

BRADLEY GRAHAM § IN THE 12TH COURT OF APPEALS § § OF

vs. § §

STATE OF TEXAS § TYLER, TEXAS

MOTION FOR REHEARING TO REINSTATE APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Bradley Graham, appellant, in the above styled and numbered cause, and moves

this Court to rehear his appeal and reinstate his appeal and shows the following in support.

Procedural History

On October 21, 2015, the 12th Court of Appeals issued a Memorandum Opinion dismissing

his appeal for want of jurisdiction due to the lack of the trial’s certification of the appellant’s right to

appeal. On June 23, 2015, trial court Judge signed the trial’s certification of the appellant’s right to

appeal but failed to specify the basis to appeal in the certification of appeal. On October 22, 2015,

appellate counsel forwarded to the trial judge the trial’s certification of the appellant’s right to

appeal and requested that his ministerial duty of certifying the appeal be completed and specify the

reason to support the appeal. This case did not involve a plea bargain the defendant had a statutory

right to appeal his case.

Applicable Law and Argument

This motion is filed under Rule 49.1, Tex. R. App. Pro., for the 12th Court of Appeals to

reinstate appellant’s appeal. On June 23, 2015, the trial court, appellant and his counsel signed a

certification of his right to appeal. The trial court has corrected the trial court’s certificate and

noted that the appellant is entitled to right to appeal. With this corrected trial court certificate,

compliance with Rule 25.2(a) (2) has been accomplished. Under Rule 2, Tex. R. App. Pro., the

appellate court may, for good cause, suspend a rule’s operation in a particular case.

The appellant has attached the amended trial court certificate, Exhibit A. The appellant is

requesting the District Clerk to supplement the Clerk’s records under Rule 34.5(c) with an

amended the trial court certificate to provide a statutory basis to support the appeal.

WHEREFORE, PREMISES CONSIDERED, appellant prays that this Court grants his

Motion for Rehearing and withdraw prior decision and reinstate his appeal.

Respectfully submitted,

/S/ Albert J. Charanza, Jr. Albert J. Charanza, Jr. Charanza Law Office, P.C. Post Office Box 1825 Lufkin, Texas 75902 Tel: (936) 634-8568 Fax: (936) 634-0306 State Bar No. 00783820 Attorney for Bradley Graham

CERTIFICATE OF SERVICE

I hereby certify that on October 28, 2015 a copy of the above and foregoing Motion to reconsider Appeal was served upon the District Attorney's Office, at Angelina County Courthouse, 215 E. Lufkin Avenue, Lufkin, Texas 75901.

/S/ Albert J. Charanza, Jr. Albert J. Charanza, Jr.

'.

NO. 2011-016~,;: .....,

STATEOFTE$OCI28 MHO: 4.) § IN THE 217tb DISTRICT CQURT § ? ~ ~L • _-. •; . " (ji VS ro h~ , 'n . ~ 1 t\;C~ L ~ ". !~~ .- § OF "'

B~LEYG~ii;t"i~;;-'~~:'~<~ ~ ANGELINACOUNTY'~ " '~, ~~~, A/l1~ eJ.... TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT 6I'APPE~ ~~ ', "

~ ,. -;. :.:)

I,judge of the trial court, certify this criminal case: ..." '., .' ~

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is not a plea-bargain case, and the defendant has the right of appeal. [or]

is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial

and not withdrawn or waived, and the defendant has the right of appeal. [or]

_ - 'is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [or]

is a plea-bargain case, and the defendant has NO right ~f appeal. [or]

the defendant has waived the right of appeal.

Presiding Judge \ Date ""'&Lf"'"

I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Ru1es of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals' judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the court of appeals. TEX.R.APP.P.68.2. I acknowledge tha~ if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney. by written communication, of any change in the address at which I am curre:ntly living or any change in my current prison unit I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the opportunity to file a pro se petition for discretionary review.

~Bradley Graham, Inmate Jr., No. 00783820 Law Office, P .C.• 412 South First Street Angelina County Jail Post Office Box 1825, Lufkin, Texas 75902 P.O. Box 114 Tel: (936) 634-8568 Fax: (936) 634-0306 Lufkin, Texas 75902 EXHIBIT

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