Esseabasi Samuel Williams v. State

Opinion

ACCEPTED 01-15-00736-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 9/3/2015 10:55:29 AM CHRISTOPHER PRINE CLERK

Harris County Public Defender’s Office 1201 Franklin, 13th floor Office No.: 713-368-0016 Houston, Texas 77002 Fax No.:FILED IN 713-368-9278 1st COURT OF APPEALS HOUSTON, TEXAS September 3, 2015 9/3/2015 10:55:29 AM CHRISTOPHER A. PRINE Clerk of the Court Clerk First Court of Appeals 301 Fannin, Room 208 Houston, Texas 77002

Re: Defective Certification of the Defendant’s Right of Appeal; Cause number 01-15-00736-CR; Esseabasi Williams vs. The State of Texas.

To the Clerk: The certification of the defendant’s right of appeal appears to be defective in this case.

The trial court checked the box on the certification form that reads: “I, judge of the trial court, certify this criminal case is not a plea-bargain case, and the defendant has the right of appeal.”

However, the Clerk’s Record reflects that the Appellant pled guilty with a pre- sentence investigation, but with an agreement to cap punishment at 30 years in prison. An agreement that places a cap on punishment is a plea bargain for purposes of Texas Rule of Appellate Procedure 25.2(a)(2). Waters v. State, 124 S.W.3d 825, 826-827 (Tex. App.-Houston [14th Dist.] 2003, pet. ref’d). Because appellant’s plea was made pursuant to a plea bargain, he may appeal only matters raised by a written pre-trial motion and denied by written order or with the trial court’s permission. See Tex. R. App. P. 25.2(a)(2). Apparently the Appellant did filed a pretrial motion challenging the constitutionality of the statute under which he was prosecuted, and obtained a written ruling pursuant to the motion.

Therefore, pursuant to Tex. R. App. P. 37.1, the Appellant requests that this Court order the trial court to:

1. Remedy the defect; 2. File a new certification of the defendant’s right of appeal with the trial court clerk in the case; and 3. Request the trial court clerk to prepare and certify a supplemental clerk’s record in the case containing the corrected certification and file it with this Court.

Very truly yours,

/s/ Bob Wicoff Bob Wicoff Attorney at Law

cc: Alan Curry Harris County District Attorney’s Office Appellate Division