Cody Crymes v. State ( 2015 )

ACCEPTED
01-15-00206-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/19/2015 12:42:22 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00206-CR
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
6/19/2015 12:42:22 PM
FIRST JUDICIAL DISTRICT CHRISTOPHER A. PRINE
Clerk
HOUSTON, TEXAS
__________________________________________________________
No. 17166
IN THE 253RD DISTRICT COURT OF
CHAMBERS COUNTY, TEXAS
__________________________________________________________
CODY CRYMES § Appellant
v. §
STATE OF TEXAS § Appellee
__________________________________________________________
STATE'S MOTION TO ABATE APPEAL AND SUPPLEMENT CLERK’S RECORD
__________________________________________________________
Cheryl Swope Lieck
District Attorney
Chambers County, Texas
Eric C. Carcerano
Assistant District Attorney
Chambers County, Texas
P.O. Box 1409
Anahuac, Texas 77514
(409) 267-2682
(409) 267-3105
ecarcerano@co.chambers.tx.us
COMES NOW the State of Texas, by and through her Assistant District
Attorney, Eric C. Carcerano, and, pursuant to TEX. R. APP. P. 34.5 (c) (1), presents
this Motion To Abate Appeal and Supplement Clerk’s Record. In support of the
motion, the State submits the following:
1. On February 7, 2014 Appellant entered a plea of guilty to the offense of sexual
assault of a child. The Court accepted Appellant’s plea and reset the case for
sentencing.
2. On February 7, 2014 the Court signed Trial Court’s Certification of
Defendant’s Right of Appeal. The Trial Court’s Certification of Defendant’s
Right of Appeal states that this is a plea bargain case and the Defendant has
NO right of appeal. It further states that the Defendant has waived his right
of appeal. The Certification is signed by the Court and by the Defendant and
by his Counsel.
3. On April 22, 2015 the Chambers County District Clerk delivered the Clerk’s
Record to the First Court of Appeals.
4. The Trial Court’s Certification of Defendant’s Right of Appeal is included in
the Clerk’s Record as an attachment to the State’s Response to Defendant’s
Motion to Withdraw Guilty Plea and State’s Brief in Opposition of
Defendant’s Motion to Withdraw Guilty Plea which is found at pages 52-61
of the Clerk’s Record.
5. Even though the Trial Court’s Certification of Defendant’s Right of Appeal
was transmitted to the Court of Appeals as an attachment, the Trial Court
Certification of Defendant’s Right of Appeal was not transmitted to the Court
as a separate document and is not listed in the index of the Clerk’s Record.
6. Upon submission of the Supplemented Record containing the Trial Court’s
Certification of Defendant’s Right of Appeal, Appellant’s Appeal should be
dismissed pursuant to TEX. R. APP. P. 25.2.
7. The purpose of the certification requirement is to efficiently sort appealable
cases from non-appealable cases. Certification allows appealable cases to
move through the system unhindered while eliminating, at an early stage, the
time and expense associated with non-appealable cases. When appeal is
barred by TEX. R. APP. P. 25.2.(a)(2), the clerk's and court reporter's records
need not be prepared, counsel need not be appointed, and briefs need not be
filed. On the other hand, if there is something in whatever record does exist
that indicates that an appellant has the right to appeal, the court of appeals
must determine whether the certification is deficient and resolve the conflict.
Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645
(Tex.Crim.App. 2005).
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Court grant the State’s Motion and:
1. Order the Chambers County District Clerk’s Office to supplement the record
to include the Trial Court’s Certification of Defendant’s Right of Appeal
entered by the 253rd District Court of Chambers County on February 7, 2014;
2. Abate this appeal until the Court of Appeals determines whether Appellant
has a right of Appeal under TEX. R. APP. P. 25.2.
Respectfully submitted,
CHERYL SWOPE LIECK
Chambers County District Attorney
/s/ Eric C. Carcerano
ERIC C. CARCERANO
Assistant District Attorney
Chambers County, Texas
P.O. Box 1409
Anahuac, Texas 77514
(409) 267-2682
(409) 267-3105 FAX
SBN 00789203
ecarcerano@co.chambers.tx.us
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been sent to
opposing counsel via email on ___19th _____ day of June, 2015.
/s/ Eric C. Carcerano
ERIC C. CARCERANO
Assistant District Attorney
Chambers County, Texas
Richard K. Oliver
Attorney for Appellant