Warren L. Houston v. State

Opinion

ACCEPTED 14-15-00016-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 8/26/2015 9:41:15 AM CHRISTOPHER PRINE CLERK

No. 14-15-00016-CR

IN THE FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS COURT OF APPEALS 8/26/2015 9:41:15 AM CHRISTOPHER A. PRINE FOR THE Clerk

FOURTEENTH DISTRICT OF TEXAS

AT HOUSTON ______________________________

WARREN L. HOUSTON Appellant

VS.

THE STATE OF TEXAS Appellee _____________________________

APPELLANT’S MOTION TO ABATE APPEAL _______________________________________

On Appeal from the 208th District Court Harris County, Texas Trial Court Cause No . 1386667 _____________________________

Jerome Godinich, Jr. SBN: 08054700 917 Franklin, Suite 320 The Kiam Building Houston, Texas 77002 Tel: (713) 237-8388 Fax: (713) 224-2889

ATTORNEY FOR WARREN L. HOUSTON TO THE HONORABLE COURT OF APPEALS:

Comes now Jerome Godinich, Jr., attorney appointed to represent the appellant in this

cause and files this Motion to Abate Appeal, and in support thereof, respectfully states to the

Court as follows:

1. The appellant was charged by indictment with the offense of Aggravated Robbery

alleged to have occurred on May 5, 2013. (CR - 011). On June 16, 2014, the

appellant appeared in court and plead “guilty” to the trial court to the charged offense

without the benefit of a plea agreement. No finding of “Guilt” was entered at that

time and the case was reset for a sentencing hearing. (A Pre-Sentence Report was 1 waived.) (CR - 041).

2. On September 22, 2014, the appellant appeared in court for a Sentencing hearing

(along with his co-defendant, Charles Pipkin). After testimony was taken and both

sides argued and rested, the appellant was found “Guilty” of the offense of

Aggravated Robbery and sentenced to 18 years in the Institutional Division of the 2 Texas Department of Criminal Justice. (CR - 041). The trial court filed a

Certification of Defendant’s Right to Appeal on June 13, 2014. (CR - 026).

1 The appellant had a co-defendant by the name of Charles Pipkin (Cause No. 1386666). It appears from the records of the Harris County District Clerk that Mr. Pipkin also plead guilty to the offense of Aggravated Robbery and his case was reset to the same day as the appellant’s for sentencing. The hearings were combined. 2 The co-defendant, Charles Pipkin received 12 years in the Institutional Division of the Texas Department of Corrections.

2 3. A Pro Se Motion for New Trial was filed on October 22, 2014 alleging ineffective

assistance by his trial counsel, Cheryl Irvin. (CR - 34-36). No hearing was set to

hear the motion, nor was it ruled upon.

4. Given the fact that the appellant was alleging Ineffective Assistance of Counsel by his

trial counsel, Cheryl Irvin, the rebutable presumption that the appellant was still

represented by that counsel at the time he was attempting to present and get a ruling

on his Motion for New Trial is overcome. Further, since the appellant had not yet

filed a Notice of Appeal, he had not yet been appointed counsel on appeal. In short,

at the time the appellant filed the Pro Se Motion for New Trial and was attempting to

prosecute that motion, he was unrepresented by counsel.

5. An indigent defendant is entitled to counsel by the sixth amendment to the federal

constitution at every “critical” stage of a criminal prosecution where adversarial

proceedings have begun absent a valid waiver. Upton v. State, 853 S.W.2d 548, 553

(Tex.Crim.App.1993). In Trevino v. State, 565 S.W.2d 938 (Tex.Crim.App.1978),

it was held that a hearing on a motion for new trial is such a critical stage of a

criminal proceeding during which a defendant is entitled to counsel. Id. at 940. The

Court of Criminal Appeals further held that, as a matter of federal constitutional law,

the time for filing a motion for new trial is a critical stage of the proceedings, and that

a defendant has a constitutional right to counsel during that period. Cooks v. State,

240 S.W.3d 285 (Tex. Crim. App. 2007).

3 6. In his Motion for New Trial, the appellant alleged that his trial counsel failed to

properly prepare defense witnesses (including the appellant himself) for their

testimony at trial. This is a cognizable claim that requires developing through

additional testimony. However, given that the appellant had no attorney to assist him

during this process, the Motion was totally unsupported by any affidavits and the

appellant failed to obtain a hearing or a ruling.

7. The appellant requests that this appeal be abated and the case be returned to the trial

court so that the appellant’s counsel on appeal can properly investigate and present

the appellant’s Motion for New Trial.

GIVEN THE ABOVE, Jerome Godinich, Jr., attorney for Warren Houston, the

appellant, prays that this appeal be abated and that the appellant be allowed to file an out-of-

time Motion for New Trial with the Assistance of Counsel.

Respectfully Submitted

/s/ Jerome Godinich, Jr. Jerome Godinich, Jr. SBN: 08054700 The Kiam Building 929 Preston, Suite 200 Houston, Texas 77002 Tel: (713) 237-8388 Fax: (713) 224-2889

4 CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing document has been forwarded to all counsel of record on this the 26th day of August, 2015 to wit:

Alan Curry Appellate Division Harris County District Attorney’s Office 1201 Franklin Houston, Texas 77002

/s/ Jerome Godinich, Jr. Jerome Godinich, Jr. 929 Preston, Suite 200 Houston, Texas 77002 Tel: (713) 237-8388 Fax: (713) 224-2889