                                                                                                                     ACCEPTED
                                                                                                                 04-14-00878-CR
                                                                                                     FOURTH COURT OF APPEALS
                                                                                                          SAN ANTONIO, TEXAS
                                                                                                           4/20/2015 12:05:03 PM
                                                                                                                  KEITH HOTTLE
                                                                                                                          CLERK

                                         NO. 04-14-00878-CR
                                         NO. 04-14-00879-CR
                                                                                 FILED IN
                                                                          4th COURT OF APPEALS
       MATTHEW DOUGLAS                                 §           IN THE FOURTH
                                                                           SAN ANTONIO, TEXAS
            HAYES                                      §                  4/20/2015 12:05:03 PM
                                                       §                      KEITH E. HOTTLE
                        V.                             §     DISTRICT COURT OF ClerkAPPEALS
                                                       §
                                                       §
       THE STATE OF TEXAS                              §            SAN ANTONIO, TEXAS


            STATE’S REQUEST TO ABATE TO TRIAL COURT FOR
                          CLARIFICATION

TO THE HONORABLE JUDGES OF THE FOURT COURT OF APPEALS:

        NOW COMES Nicholas “Nico” LaHood, Criminal District Attorney of

Bexar County and Counsel for the State of Texas, and files this request to abate

this cause back to the trial court for clarification of the certification of Appellant’s

right to appeal.

        Appellant entered into a plea agreement in two separate cause numbers

whereby he pled guilty to two counts of aggravated robbery with a deadly weapon

under each cause number (for a total of four counts) and judicially confessed to the

same.1 (I CR at 8, 13 & II CR at 8, 13). After a pre-sentence investigation,

Appellant was sentenced to seven years’ confinement in the Texas Department of




1
 The clerk’s record for Cause Number 2013-CR-10841W is referred to as I CR. The clerk’s record for cause
number 2013-CR-10842W is referred to as II CR. The court reporter’s records are referred by [volume] RR at [page
number] (e.g., I RR at 63).


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Criminal Justice, a sentence which was less than the bargained-for cap of ten

years’ confinement. (I CR at 62; II CR at 41).

      The certification of Appellant’s right to appeal is ambiguous as to Cause

Number 2013-CR-10841W (I CR at 58) and the State filed a motion requesting

clarification in response to Appellant’s appellate brief. Appellant now argues this

ambiguity is an anomaly and that the certification of his right to appeal in Cause

Number 2013-CR-10842W (II CR at 38) clearly shows that the trial court did grant

him the right to appeal. (Appellant’s Reply at 2). Appellant also argues that

despite the numerous oral admonitions contained in the court reporter’s records,

which capture Appellant’s repeated indications that he understood he was waiving

his right to appeal and still wished to proceed with the plea agreement, Appellant

retained his right to appeal. (I RR at 6; III RR at 8–9). Appellant relies on the date

of his plea (December 4, 2013) to support his argument that because the

certifications were “signed nearly two months later” they should control.

(Appellant’s Reply at 3); however Appellant ignores the fact that Appellant was

again admonished that he had waived his right to appeal at his sentencing on

September 9, 2014 (nearly ten months after his plea and eight months after the

certifications of right to appeal). (III RR at 8–9). Furthermore, the court signed its

formal judgment in Cause Number 2013-CR-10841W on September 11, 2014 and

in the space after Notice of Appeal, it clearly states “DENIED.” (I CR at 62).



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Likewise, the formal judgment in Cause Number 2013-CR10842W, signed by the

court on September 15, 2015, also states “DENIED” in the space following Notice

of Appeal. (II CR at 63).

      In every place other than the single certification in Cause Number 2013-CR-

10841W, the record indicates Appellant knowingly and voluntarily waived his

right to appeal. Due to the inconsistencies in the record, the State asserts that the

certification of Appellant’s right to appeal requires clarification by the trial court.

Because clarification of Appellant’s right to appeal is required, the State does not

address any of Appellant’s points of error on appeal at this time.

      WHEREFORE, PREMISES CONSIDERED, Counsel for the State prays

this Court abate the proceedings back to the trial court for clarification of the

certification of Appellant’s right to appeal.

                                                  Respectfully submitted,

                                                  Nicholas “Nico” LaHood
                                                  Criminal District Attorney
                                                  Bexar County, Texas

                                                  /s/ Amanda C. Byrd
                                                  _____________________
                                                  Amanda C. Byrd
                                                  State Bar No. 24081811
                                                  Assistant Criminal District Attorney
                                                  101 W. Nueva Street
                                                   San Antonio, Texas 78205-3030
                                                  Phone: (210) 335-2157
                                                  Email: Amanda.Byrd@Bexar.org



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                      CERTIFICATE OF SERVICE

     I, Amanda C. Byrd, Assistant District Attorney, Bexar County, Texas,

certify that a copy of the foregoing motion was delivered by e-mail to Mandy

Miller, attorney for appellant, on April 20, 2015 at email address:

Mandy@MandyMillerLegal.com.

                                              _/s/ Amanda C. Byrd




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