Debeyon Patrice Young v. State

Opinion

ACCEPTED

01-15-00412-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS 12/1/2015 10:43:37 AM CHRISTOPHER PRINE

CLERK

IN THE COURT OF APPEALS FOR THE FIRST COURT OF APPEALS DISTRICT FILED IN 1st COURT OF APPEALS

HOUSTON, TEXAS

No. 01-15-00412-CR 12/1/2015 10:43:37 AM CHRISTOPHER A. PRINE

Clerk

DEBEYON PATRICE YOUNG, Appellant On Appeal from the 208th District Court of Harris

v. County, TX; Trial Cause No.

1388619.

THE STATE OF TEXAS, Appellee

___________________________________________________________

APPELLANT’S MOTION TO ABATE TO DETERMINE THE EXTENT TO WHICH APPELLANT MAY APPEAL

___________________________________________________________

Jerome Godinich, Jr. TBA No. 08054700 917 Franklin, Suite 320 Houston, Texas 77002 (713) 237-8388 (713) 224-2889 FAX JGodinich@AOL.com

Attorney for Appellant (on appeal only)

November 30, 2015

TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

DEBEYON PATRICE YOLUNG, Appellant in the above cause, would

respectfully request the Court to abate this cause and remand it to the trial court for a

determination of the extent to which Appellant may appeal. In support of said

motion, Appellant would show the following:

I.

This appeal stems from Appellant’s conviction for aggravated robbery. (CR at

162). Appellant pleaded guilty without an agreed recommendation to the trial court

and was sentenced to a term of thirty-five [35] years. (CR at 162). Appellant gave

notice of appeal. (CR at 166).

II.

On 4-08-2015, the trial judge executed a, “Certification of Defendant’s Right

to Appeal”. (CR at 159). In this certification, the trial judge indicated that the

Appellant waived the right to appeal. On 4-20-2015, the same trial judge executed

another “Certification of Defendant’s Right to Appeal”. (CR at 165). In this

certification, the trial judge indicated that she gave Appellant permission to appeal.

In the present case, the two certifications of defendant’s right to appeal are

conflicting. Compare Monreal v. State, 99 S.W.3d 615, 617 (Tex. Cr. App. 2003) (A

waiver of the right to appeal that was made voluntarily, knowingly, and intelligently is

valid and will prevent a defendant from appealing without the consent of the trial

court.); Perez v. State, 129 S.W.3d 282, 287 (Tex. App. - Corpus Christi 2004, no pe.)

(“A valid waiver of appeal, whether negotiated or non-negotiated, will prevent a

defendant from appealing without the consent of the trial court.”) with Willis v. State,

121 S.W.3d 400, 403 (Tex. Cr. App. 2003) (trial court’s permission to appeal overrides

even a valid waiver of the right to appeal).

III.

Undersigned counsel cannot determine from this record whether and to what

extent Appellant may appeal and whether or not an Anders brief may be appropriate.

This Court has the authority to abate a case to the trial court to correct errors in the

record that prevent a proper consideration of the appeal. See TEX. R. APP. PROC.

44.4(b); Iles v. State, 127 S.W.3d 347, 350 (Tex. App. - Houston [1st Dist.] 2004, no

pet.) (“The trial court is in a better position to determine whether the previously

executed waiver of appeal was in fact validly executed and if there is any arguable

merit in appellant's desire to appeal.”).

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant asks this Honorable Court to grant this Motion to Abate and order the trial court to determine the extent to which Appellant may appeal.

Respectfully submitted,

By: /s/ JEROME GODINICH, JR.

Jerome Godinich, Jr. TBA No. 08054700 917 Franklin, Suite 320 Houston, Texas 77002 (713) 237-8388 (713) 224-2889 FAX JGodinich@AOL.com

Attorney for Appellant (on appeal only)

November 30, 2015

CERTIFICATE OF SERVICE

I certify that a copy of this Post-Submission Brief for Appellant has been served upon the State of Texas by e-mailing a copy of same to the following parties at their respective addresses on this the 27th day of March, 2015:

ALAN CURRY HARRIS CO. DISTRICT ATTORNEY 1201 FRANKLIN HOUSTON, TX 77002

/s/ JEROME GODINICH, JR. Jerome Godinich, Jr.