text:                                                                                                 ACCEPTED
                                                                                              04-15-00263-CR
                                                                                  FOURTH COURT OF APPEALS
                                                                                       SAN ANTONIO, TEXAS
                                                                                         7/8/2015 10:24:03 AM
                                                                                               KEITH HOTTLE
                                                                                                       CLERK
  
                                     No. 04-15-00263-CR
  
                                       IN THE                               FILED IN
                                                                     4th COURT OF APPEALS
                             FOURTH COURT OF APPEALS                  SAN ANTONIO, TEXAS
                                      OF TEXAS                       7/8/2015 10:24:03 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 117). 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 117). 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, 118-21)(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
  
  
                                                2
  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 137).
  
        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.”
  
  
                                             3
  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
  
                                               4
                                         /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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