Debeyon Patrice Young v. State ( 2015 )

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.