                                                                        ACCEPTED
                                                                    14-15-00016-CR
                                                    FOURTEENTH COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               8/26/2015 9:41:15 AM
                                                              CHRISTOPHER PRINE
                                                                             CLERK

            No. 14-15-00016-CR

                  IN THE                            FILED IN
                                             14th COURT OF APPEALS
                                                HOUSTON, TEXAS
           COURT OF APPEALS
                                             8/26/2015 9:41:15 AM
                                             CHRISTOPHER A. PRINE
                 FOR THE                              Clerk

   FOURTEENTH DISTRICT OF TEXAS

             AT HOUSTON
    ______________________________

          WARREN L. HOUSTON
                     Appellant

                    VS.

         THE STATE OF TEXAS
                      Appellee
     _____________________________

       APPELLANT’S MOTION TO
            ABATE APPEAL
_______________________________________

   On Appeal from the 208th District Court
            Harris County, Texas
      Trial Court Cause No . 1386667
    _____________________________

                          Jerome Godinich, Jr.
                          SBN: 08054700
                          917 Franklin, Suite 320
                          The Kiam Building
                          Houston, Texas 77002
                          Tel: (713) 237-8388
                          Fax: (713) 224-2889

                          ATTORNEY FOR
                          WARREN L. HOUSTON
TO THE HONORABLE COURT OF APPEALS:

       Comes now Jerome Godinich, Jr., attorney appointed to represent the appellant in this

cause and files this Motion to Abate Appeal, and in support thereof, respectfully states to the

Court as follows:

1.     The appellant was charged by indictment with the offense of Aggravated Robbery

       alleged to have occurred on May 5, 2013. (CR - 011). On June 16, 2014, the

       appellant appeared in court and plead “guilty” to the trial court to the charged offense

       without the benefit of a plea agreement. No finding of “Guilt” was entered at that

       time and the case was reset for a sentencing hearing. (A Pre-Sentence Report was
                                1
       waived.) (CR - 041).

2.     On September 22, 2014, the appellant appeared in court for a Sentencing hearing

       (along with his co-defendant, Charles Pipkin). After testimony was taken and both

       sides argued and rested, the appellant was found “Guilty” of the offense of

       Aggravated Robbery and sentenced to 18 years in the Institutional Division of the
                                                                     2
       Texas Department of Criminal Justice. (CR - 041).                 The trial court filed a

       Certification of Defendant’s Right to Appeal on June 13, 2014. (CR - 026).



       1
          The appellant had a co-defendant by the name of Charles Pipkin (Cause No. 1386666).
It appears from the records of the Harris County District Clerk that Mr. Pipkin also plead guilty
to the offense of Aggravated Robbery and his case was reset to the same day as the appellant’s
for sentencing. The hearings were combined.
       2
        The co-defendant, Charles Pipkin received 12 years in the Institutional Division of the
Texas Department of Corrections.

                                                2
3.   A Pro Se Motion for New Trial was filed on October 22, 2014 alleging ineffective

     assistance by his trial counsel, Cheryl Irvin. (CR - 34-36). No hearing was set to

     hear the motion, nor was it ruled upon.

4.   Given the fact that the appellant was alleging Ineffective Assistance of Counsel by his

     trial counsel, Cheryl Irvin, the rebutable presumption that the appellant was still

     represented by that counsel at the time he was attempting to present and get a ruling

     on his Motion for New Trial is overcome. Further, since the appellant had not yet

     filed a Notice of Appeal, he had not yet been appointed counsel on appeal. In short,

     at the time the appellant filed the Pro Se Motion for New Trial and was attempting to

     prosecute that motion, he was unrepresented by counsel.

5.   An indigent defendant is entitled to counsel by the sixth amendment to the federal

     constitution at every “critical” stage of a criminal prosecution where adversarial

     proceedings have begun absent a valid waiver. Upton v. State, 853 S.W.2d 548, 553

     (Tex.Crim.App.1993). In Trevino v. State, 565 S.W.2d 938 (Tex.Crim.App.1978),

     it was held that a hearing on a motion for new trial is such a critical stage of a

     criminal proceeding during which a defendant is entitled to counsel. Id. at 940. The

     Court of Criminal Appeals further held that, as a matter of federal constitutional law,

     the time for filing a motion for new trial is a critical stage of the proceedings, and that

     a defendant has a constitutional right to counsel during that period. Cooks v. State,

     240 S.W.3d 285 (Tex. Crim. App. 2007).


                                              3
6.     In his Motion for New Trial, the appellant alleged that his trial counsel failed to

       properly prepare defense witnesses (including the appellant himself) for their

       testimony at trial. This is a cognizable claim that requires developing through

       additional testimony. However, given that the appellant had no attorney to assist him

       during this process, the Motion was totally unsupported by any affidavits and the

       appellant failed to obtain a hearing or a ruling.

7.     The appellant requests that this appeal be abated and the case be returned to the trial

       court so that the appellant’s counsel on appeal can properly investigate and present

       the appellant’s Motion for New Trial.

       GIVEN THE ABOVE, Jerome Godinich, Jr., attorney for Warren Houston, the

appellant, prays that this appeal be abated and that the appellant be allowed to file an out-of-

time Motion for New Trial with the Assistance of Counsel.

                                    Respectfully Submitted



                                      /s/ Jerome Godinich, Jr.
                                    Jerome Godinich, Jr.
                                    SBN: 08054700
                                    The Kiam Building
                                    929 Preston, Suite 200
                                    Houston, Texas 77002
                                    Tel: (713) 237-8388
                                    Fax: (713) 224-2889




                                               4
                             CERTIFICATE OF SERVICE

       I do hereby certify that a true and correct copy of the above and foregoing document
has been forwarded to all counsel of record on this the 26th day of August, 2015 to wit:

       Alan Curry
       Appellate Division
       Harris County District Attorney’s Office
       1201 Franklin
       Houston, Texas 77002



                                            /s/ Jerome Godinich, Jr.
                                          Jerome Godinich, Jr.
                                          929 Preston, Suite 200
                                          Houston, Texas 77002
                                          Tel: (713) 237-8388
                                          Fax: (713) 224-2889




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