## IN THE COURT OF APPEALS FOR THE FIRST

COURT OF APPEALS DISTRICT

No. 01-15- 00 412- CR

DEBEYON PATRICE YOUNG,

Appellant

v.

THE STATE OF TEXAS,

Appellee

___________________________________________________________



## APPELLANT’S MOTION TO ABATE TO

DETERMINE THE EXTENT TO WHICH

APPELLANT MAY APPEAL

___________________________________________________________

Jerome Godinich, Jr.

TBA No. 0 8054700

917 Franklin, Suite 3 20

Houston, Texas 77002

(713) 2 37

- 8388

(713) 224-2889 FAX

JGodinich@AOL.com

Attorney for Appellant

(on appeal only)

November 30, 201 5 On Appeal from the 208 th

District Court of Harris

County , TX; Trial Cause No.

1388619

. ACCEPTED

01-15-00412-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/1/2015 10:43:37 AM

CHRISTOPHER PRINE

CLERKTO 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 re mand it to the trial court for a

determination of the extent to which Appellant may appeal. In support of said

m otion, 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 [3 5] 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 w aived the right to appeal. On 4

- 20

- 2015, the same trial judge executed

a nother “Certification of Defendant’s Right to Appeal”. (CR at 1 6 5). In this

certification, the trial judge indicated that s he gave Appellant permission to appeal.In the present case, the two c ertification s of d efendant’s r ight to a ppeal 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 preve nt 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 vali d waiver of the right to appeal).

III.

Undersigned counsel cannot determine from this r ecord 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 T EX

. R. A PP

. P ROC

.

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 m ay appeal.

Respectfully submitted,

By: /s/ JEROME GODINICH, JR.

Jerome Godinich, Jr.

TBA No. 0 8054700

9 17 Franklin , Suite 3 20

Houston, Texas 77002

(713) 2 37

- 8388

(713) 22 4

- 2889 FAX

JGodinich @

AOL.com

Attorney for Appellant

(on appeal only)

November 30, 201 5CERTIFICATE OF SERVICE

I certify that a copy of this Post

- Submission Brief for Appellant has been

served up on the State of Texas by e

- mailing a copy of same to the following parties at

their respective addresses on this the 27 th day of March , 201 5 :

ALAN CURRY

HARRIS CO. DISTRICT ATTORNEY

1 20 1 FRANKLIN

HOUSTON , TX 77 002

/s/ JEROME GODINICH, JR.

Jerome Godinich, Jr.