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No. 04-15-00262-CR

IN THE 

FOURTH COURT OF APPEALS

OF TEXAS

AT SAN ANTONIO, TEXAS

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 

ACCEPTED

04-15-00262-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/8/2015 10:23:01 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 7/8/2015 10:23:01 AM KEITH E. HOTTLE Clerk
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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 147). 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withdrawn or waived, and the defendant has the right of appeal[.]”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 147). 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, 148-51)(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 
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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 167). 

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.” 
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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
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/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.