Cody Crymes v. State

Opinion

ACCEPTED

01-15-00206-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS 6/19/2015 12:42:22 PM CHRISTOPHER PRINE

CLERK

No. 01-15-00206-CR

FILED IN

1st COURT OF APPEALS

IN THE COURT OF APPEALS HOUSTON, TEXAS 6/19/2015 12:42:22 PM

FIRST JUDICIAL DISTRICT CHRISTOPHER A. PRINE Clerk

HOUSTON, TEXAS

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No. 17166

IN THE 253RD DISTRICT COURT OF

CHAMBERS COUNTY, TEXAS

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CODY CRYMES § Appellant

v. §

STATE OF TEXAS § Appellee

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STATE'S MOTION TO ABATE APPEAL AND SUPPLEMENT CLERK’S RECORD

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Cheryl Swope Lieck District Attorney Chambers County, Texas

Eric C. Carcerano Assistant District Attorney Chambers County, Texas P.O. Box 1409 Anahuac, Texas 77514 (409) 267-2682 (409) 267-3105 ecarcerano@co.chambers.tx.us

COMES NOW the State of Texas, by and through her Assistant District Attorney, Eric C. Carcerano, and, pursuant to TEX. R. APP. P. 34.5 (c) (1), presents this Motion To Abate Appeal and Supplement Clerk’s Record. In support of the motion, the State submits the following:

1. On February 7, 2014 Appellant entered a plea of guilty to the offense of sexual assault of a child. The Court accepted Appellant’s plea and reset the case for sentencing.

2. On February 7, 2014 the Court signed Trial Court’s Certification of Defendant’s Right of Appeal. The Trial Court’s Certification of Defendant’s Right of Appeal states that this is a plea bargain case and the Defendant has NO right of appeal. It further states that the Defendant has waived his right of appeal. The Certification is signed by the Court and by the Defendant and by his Counsel.

3. On April 22, 2015 the Chambers County District Clerk delivered the Clerk’s Record to the First Court of Appeals.

4. The Trial Court’s Certification of Defendant’s Right of Appeal is included in the Clerk’s Record as an attachment to the State’s Response to Defendant’s Motion to Withdraw Guilty Plea and State’s Brief in Opposition of Defendant’s Motion to Withdraw Guilty Plea which is found at pages 52-61 of the Clerk’s Record.

5. Even though the Trial Court’s Certification of Defendant’s Right of Appeal was transmitted to the Court of Appeals as an attachment, the Trial Court Certification of Defendant’s Right of Appeal was not transmitted to the Court as a separate document and is not listed in the index of the Clerk’s Record.

6. Upon submission of the Supplemented Record containing the Trial Court’s Certification of Defendant’s Right of Appeal, Appellant’s Appeal should be dismissed pursuant to TEX. R. APP. P. 25.2.

7. The purpose of the certification requirement is to efficiently sort appealable cases from non-appealable cases. Certification allows appealable cases to move through the system unhindered while eliminating, at an early stage, the time and expense associated with non-appealable cases. When appeal is barred by TEX. R. APP. P. 25.2.(a)(2), the clerk's and court reporter's records need not be prepared, counsel need not be appointed, and briefs need not be filed. On the other hand, if there is something in whatever record does exist that indicates that an appellant has the right to appeal, the court of appeals must determine whether the certification is deficient and resolve the conflict. Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645 (Tex.Crim.App. 2005).

WHEREFORE, PREMISES CONSIDERED, the State prays that this

Court grant the State’s Motion and:

1. Order the Chambers County District Clerk’s Office to supplement the record to include the Trial Court’s Certification of Defendant’s Right of Appeal entered by the 253rd District Court of Chambers County on February 7, 2014;

2. Abate this appeal until the Court of Appeals determines whether Appellant has a right of Appeal under TEX. R. APP. P. 25.2.

Respectfully submitted, CHERYL SWOPE LIECK Chambers County District Attorney

/s/ Eric C. Carcerano ERIC C. CARCERANO Assistant District Attorney Chambers County, Texas P.O. Box 1409 Anahuac, Texas 77514 (409) 267-2682 (409) 267-3105 FAX SBN 00789203 ecarcerano@co.chambers.tx.us

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been sent to opposing counsel via email on ___19th _____ day of June, 2015.

/s/ Eric C. Carcerano ERIC C. CARCERANO Assistant District Attorney Chambers County, Texas

Richard K. Oliver Attorney for Appellant