Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/19/2015 12:42:22 PM CHRISTOPHER A. PRINE Clerk *1 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 IN THE COURT OF APPEALS FIRST JUDICIAL DISTRICT HOUSTON, TEXAS __________________________________________________________

No. 17166 IN THE 253 RD DISTRICT COURT OF CHAMBERS COUNTY, TEXAS __________________________________________________________

CODY CRYMES § Appellant

v. §

STATE OF TEXAS § Appellee

__________________________________________________________

S TATE ' S M OTION T O BATE PPEAL AND S UPPLEMENT C LERK ’ S R ECORD

__________________________________________________________

Cheryl Swope Lieck District Attorney Chambers County, Texas Eric C. Carcerano Chambers County, Texas P.O. Box 1409 Anahuac, Texas 77514 (409) 267-2682 (409) 267-3105 ecarcerano@co.chambers.tx.us *2

COMES NOW the State of Texas, by and through her Assistant District

Attorney, Eric C. Carcerano, and, pursuant to T EX . R. PP . 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 T EX . R. PP . 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 T EX . R. PP . 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 253 rd 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 T EX . R. PP . P. 25.2.

Respectfully submitted, CHERYL SWOPE LIECK Chambers County District Attorney /s/ Eric C. Carcerano ERIC C. CARCERANO Chambers County, Texas P.O. Box 1409 Anahuac, Texas 77514 (409) 267-2682 (409) 267-3105 FAX SBN 00789203 ecarcerano@co.chambers.tx.us *4 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing instrument has been sent to

opposing counsel via email on ___19 th _____ day of June , 2015.

/s/ Eric C. Carcerano ERIC C. CARCERANO Chambers County, Texas Richard K. Oliver

Attorney for Appellant