Angel H. Longoria v. State ( 2015 )

ACCEPTED
04-15-00262-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/8/2015 10:23:01 AM
KEITH HOTTLE
CLERK
No. 04-15-00262-CR
IN THE FILED IN
4th COURT OF APPEALS
FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
OF TEXAS 7/8/2015 10:23:01 AM
AT SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk
ANGEL H. LONGORIA APPELLANT
V.
THE STATE OF TEXAS APPELLEE
MOTION TO ABATE APPEAL
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS OF TEXAS:
COMES NOW, ANGEL H. LONGORIA, the Appellant in the above styled
and numbered cause, pursuant to Texas Rules of Appellate Procedure 10.1(a),
25.2(f), 35.4(c)(2) and 37.1, through the undersigned counsel, files this motion to
abate the appeal so that the trial court may reconsider the certification of the
defendant’s (Appellant’s) right of appeal. In support of this motion undersigned
counsel respectfully shows the following:
I. Current deadline for filing the Appellant’s brief:
The reporter’s record was filed on June 30, 2015. The Appellant’s brief is due
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to be filed on or before July 30, 2015.
II. This Court may review the certification of the right of appeal:
Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure requires “[t]he trial
court [to] enter a certification of the defendant’s right of appeal in every case in
which it enters a judgment of guilt or other appealable order.” TEX. R. APP. P.
25.2(a)(2). The appellate court is “obligated to review th[e] record [to] ascertain[ ]
whether the certifications [are] defective.” Dears v. State, 154 S.W.3d 610, 615
(Tex. Crim. App. 2005). A certification is “defective” if it “proves to be inaccurate”
“when compared with the record.” Id. at 614.
III. The certification of the defendant’s right of appeal is not accurate:
The clerk’s record includes the trial court’s certification of the defendant’s
right of appeal. (CR at 147). The trial court certified that this “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withdrawn or waived, and the defendant has the right of appeal[.]” (CR at 147). The
record discloses that this is a plea-bargain case and the trial court pronounced
sentence in accordance with the plea bargain. (CR at 96, 148-51)(RR at 9). As part of
the plea agreement, Appellant waived his right of appeal in writing, including the
right to appeal matters raised by written motion and ruled on before trial. (CR at 96).
The trial court orally stated that Appellant has “permission to appeal those matters
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which were raised by written motions” “[a]nd ruled upon.” (RR at 6, 9-10). But the
clerk’s record discloses that no rulings were made on any of the written motions that
were filed in the case. None of the orders associated with written motions were
signed. The trial court and the parties made no reference to any ruled-upon motions
during the plea-entry hearing. (RR 1-10). There are also no entries on the docket
sheet that would reflect that a motion was heard or ruled on. (CR at 167).
In short, the certification of the defendant’s right of appeal is defective
because it does not comport with the record. The record discloses no matters that
were raised by written motion filed and ruled on before trial. Moreover, Appellant
waived the right of appeal in writing as part of his plea agreement. (CR at 96). See
Marsh v. State, 444 S.W.3d 654, 660 (Tex. Crim. App. 2014)(recognizing that a
defendant may waive the right of appeal as part of his plea bargain). The record
shows that Appellant entered into the plea agreement voluntarily. He answered,
“Yes, Your Honor,” when asked if he was “pleading guilty freely and voluntarily.”
(RR at 8). There is simply nothing in the record to support the trial court’s
certification that Appellant has the right of appeal in this case.
IV. This appeal should be abated:
This Court “has the ability to examine a certification for defectiveness, and to
use Rules 37.1 and 34.5(c) to obtain another certification, whenever appropriate.”
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Dears, 154 S.W.3d at 614; see TEX. R. APP. P. 34.5(c)(2) (authorizing appellate
court to require trial court to prepare certification of defendant's right to appeal),
37.1 (requiring appellate clerk to inform parties when there is defect in certification
of defendant's right to appeal in criminal case). For that reason, the undersigned
respectfully asks this Court to abate this appeal so that the trial court may reconsider
its certification of the defendant’s right of appeal and that an accurate certification
may be obtained from the trial court.
PRAYER
THEREFORE, undersigned counsel for the Appellant prays that this Court
issue an order abating this appeal and remanding this cause to the trial court so that
the trial court may reconsider the certification of the defendant’s right of appeal and
enter an amended certification if necessary. As always, the Appellant also asks this
Court to grant all such relief as is fair and just.
Respectfully submitted,
RICHARD B. DULANY, JR.
Texas Bar No. 06196400
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Suite 370
San Antonio, Texas 78205
(210) 335-0701
(210) 335-0707 fax
Richard.Dulany@bexar.org
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/s/ Richard B. Dulany, Jr.
___________________________________
RICHARD B. DULANY, JR.
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE AND COMPLIANCE
The undersigned does hereby certify that a copy of the above motion was
delivered by electronic service to the Appellate Section of the State’s Attorney:
Nicholas A. LaHood, Criminal District Attorney, Bexar County District Attorney’s
Office, Appellate Section, 101 W. Nueva St., Suite 710, San Antonio, Texas 78205,
on July 8, 2015. The word count is 898.
/s/ Richard B. Dulany, Jr.
___________________________________
RICHARD B. DULANY, JR.
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