                                                                                                ACCEPTED
                                                                                           01-14-00511-CR
                                                                                 FIRST COURT OF APPEALS
                                                                                         HOUSTON, TEXAS
                                                                                     1/20/2015 10:13:34 AM
                                                                                       CHRISTOPHER PRINE
                                                                                                    CLERK

                  IN THE COURT OF APPEALS FOR THE
                       FIRST DISTRICT OF TEXAS
                           NO. 01-14-00511-CR                           FILED IN
                                                                 1st COURT OF APPEALS
                                                                     HOUSTON, TEXAS
STEPHEN LARS MORRIS                           §                  1/20/2015 10:13:34 AM
Appellant                                     §                  CHRISTOPHER A. PRINE
                                              §     On Appeal              185th
                                                                From theClerk
                                              §     District Court Harris County
V.                                            §     Trial Cause No. 1384125
                                              §
THE STATE OF TEXAS                            §
Appellee                                      §

                             MOTION TO ABATE

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW, STEPHEN LARS MORRIS Appellant in the above-styled

appeals, and moves that this appeal be abated with instructions to the trial court to

enter an accurate Certification of the Defendant’s Right of Appeal, and shows:

                                         I.

      On April 1, 2014, Appellant entered a plea of guilty to aggravated assault with

a deadly weapon. The case was reset pending the preparation of a pre-sentence

investigation. Also on April 1, 2014, the trial court entered a Certification of the

Defendant’s Right of Appeal, which stated the defendant had waived the right to

appeal.

      On June 11, 2014, following a PSI hearing, Appellant was sentenced to twenty

(20) years in the Texas Department of Corrections. The judgment also states “Appeal

Waived. No Permission to Appeal Granted.” There is no other indication in the clerk’s
record that the Appellant waived his right of appeal, and certainly nothing to suggest

that he knew at the time of his guilty plea what his punishment was going to be at the

later sentencing hearing. While the State reduced the charge from a first degree felony

to a second degree, the plea papers specifically state the plea was “without an agreed

recommendation. There is nothing in the record to enable this Court to determine

the reason for the charge reduction. It would be mere speculation to assume this was

the result of a plea bargain. Finally there is no written waiver of appeal in the clerk’s

records on appeal.

                                            II.

         With respect to the certification of the defendant’s right of appeal, the Court

of Criminal Appeals has stated that “TRAP Rules 44.3 and 44.4 reflect a strong

interest in ensuring that a defendant's right to appeal is not abridged due to ‘defects or

irregularities' ” that can be corrected. Dears v. State, 154 S.W.3d at 614 (Tex. Crim. App.

2005).

         As the record does not conclusively show Appellant’s plea was pursuant to a

plea bargain he has the right to appeal unless Appellant knowingly and intelligently

waived his right to appeal.    Non-negotiated waivers of the right to appeal are valid

only if the defendant waived the right of appeal knowing with certainty the

punishment that would be assessed. Monreal v. State, 99 S.W.3d 615, 621 (Tex. Crim.

App. 2003). Because there was no plea bargain in this case, any waiver made before

sentencing could not have been made with certain knowledge of the punishment that
would be assessed. See Ex parte DeLaney, 207 S.W.3d 794, 796-97 (Tex. Crim. App.

2006).

         Because the record does not support the current certification, Appellant

requests this Court to abate the appeal to determine whether there was a valid waiver

of appeal and to enter an amended certification if Appellant did not enter a valid

waiver of appeal.

                                              Respectfully submitted,

                                              Alexander Bunin
                                              Chief Public Defender

                                              /s/ Melissa Martin
                                              Melissa Martin
                                              State Bar No. 24002532
                                              Harris County Public Defender’s Office
                                              1201 Franklin 13th Floor
                                              Houston, Texas 77002
                                              Tel: 713-368-0016
                                              melissa.martin@pdo.hctx.net


                          CERTIFICATE OF SERVICE

I certify that on the 20th day of January 2015 a copy of the foregoing instrument has

been electronically served upon the State of Texas.


                                              /s/ Melissa Martin
                                              MELISSA MARTIN
