ACCEPTED
04-15-00196-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/15/2015 4:22:15 PM
KEITH HOTTLE
CLERK
No. 04-15-00196-CR
IN THE FILED IN
4th COURT OF APPEALS
FOURTH COURT OF APPEALS OF TEXASSAN ANTONIO, TEXAS
AT SAN ANTONIO, TEXAS 4/15/2015 4:22:15 PM
KEITH E. HOTTLE
MICHAEL S. EISENHAUER, Clerk
Appellant
v.
THE STATE OF TEXAS,
Appellee
RESPONSE TO THE ORDER PROPOSING TO DISMISS THIS APPEAL
PURSUANT RULE 25.2(d) OF THE TEXAS RULES OF APPELLATE
PROCEDURE
TO THE HONORABLE COURT OF APPEALS:
Comes now MICHAEL S. EISENHAUER, Appellant, by and through
undersigned counsel, in reply to the ORDER of this Honorable Court dated April
7, 2015, and shows the Court the following:
I. Procedural history:
Appellant was charged by indictment in cause number 2013-CR-6130 with
family violence assault, enhanced with the allegation that Appellant was previously
convicted of family violence assault causing bodily injury. The primary offense
was alleged to have been committed in Bexar County, Texas, on or about June 19,
2013. (CR at 5). On July 16, 2013, the trial court granted attorney Brad Kvitna’s
motion to appear as Appellant’s attorney. (CR at 6-8). Mr. Kvinta also filed a
written appearance as retained counsel on November 15, 2013. (CR at 34).
On February 18, 2014, pursuant to a written plea agreement with the State,
Appellant pleaded no contest to the charged offense. (CR at 45, 47). The parties
agreed that the punishment assessed would be capped at six years of imprisonment,
with a $1,500 fine. (CR at 45). As part of the plea agreement, Appellant agreed in
writing to waive the right of appeal. (CR at 45). The trial court approved
Appellant’s waiver and voluntary relinquishment of his known rights in this case,
including the right of appeal. (CR at 49).
On April 4, 2014, the trial court, the Honorable Maria Teresa Herr presiding,
followed the terms of the plea agreement and sentenced Appellant to six years of
imprisonment in the Institutional Division, with a $1,500.00 fine. (CR at 64). The
trial court imposed court costs of $394.00 and entered a family violence finding.
(CR at 64-65). The trial court certified that this is a plea-bargain case, that
Appellant has “NO right of appeal,” and that he also waived the right of appeal.
(CR at 66). By his signature, Appellant acknowledged that he was informed that he
has no right of appeal in this case. (CR at 66).
Almost a year after he was sentenced, on March 24, 2015, Appellant filed a
pro se notice of appeal with the District Clerk. (CR at 72-76). Appellant’s pro se
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notice of appeal was not timely filed, and nothing in the trial record shows that he
filed a motion for extension of time to file the notice of appeal. (CR at 2-4).
On April 1, 2015, the trial court appointed the Bexar County Public
Defender’s Office to represent Appellant in this attempted appeal. (CR at 101).
The clerk’s record was filed on April 6, 2015. On April 7, 2015, this Court
ORDERED that this appeal will be dismissed pursuant to Rule 25.2(d) of the
Texas Rules of Appellate Procedure unless Appellant files a response establishing
that the notice of appeal was timely filed and causes an amended trial court
certification (showing that Appellant has the right of appeal) to be filed by April
17, 2015. This is court-appointed counsel’s response to the Court’s ORDER.
II. No right of appeal:
In a plea-bargain case where the sentence does not exceed the agreed-upon
punishment, the defendant may appeal only matters that were raised by written
motion and ruled upon before trial, or by getting the trial court’s written
certification that he has permission to appeal. See TEX. R. APP. P. 25.2(a)(2). Rule
25.2(d) of the Texas Rules of Appellate Procedure provides, “The appeal must be
dismissed if a certification that shows the defendant has a right of appeal has not
been made part of the record under these rules.” TEX. R. APP. P. 25.2(d).
This was a plea-bargain case. As noted above, the clerk’s record shows that
Appellant pleaded “nolo contendere” to the primary offense pursuant to the terms
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of a written plea agreement with the State. (CR at 47, 64). The trial court followed
that plea agreement by sentencing Appellant to six years of imprisonment. (CR at
47, 64). The trial court accurately certified that this is a plea-bargain case,
Appellant has “NO right of appeal,” and also waived the right of appeal. (CR at
66). Appellant signed that notice. (CR at 66). Additionally, no written pretrial
motions were filed and ruled upon before the plea-entry hearing.1 (CR at 2-5). For
these reasons, the trial court’s certification of the defendant’s right of appeal
accurately reflects that this is a plea-bargain case, the terms of the plea bargain
were followed, and Appellant has no right of appeal.
III. Waiver:
A defendant may waive the right of appeal, as long as the waiver is made
“voluntarily, knowingly, and intelligently.” See TEX. CODE CRIM. PROC. art. 1.14
(“The defendant in a criminal prosecution for any offense may waive any rights
secured him by law.”); Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App.
2009). The record shows that Appellant waived the right of appeal in writing as
part of the plea agreement, and the trial court approved that waiver. (CR at 45, 49).
Undersigned counsel can identify nothing in the clerk’s record to show that the
trial court failed to follow the terms of the plea bargain, and nothing shows that
Appellant’s written waiver of the right of appeal was involuntary. Since Appellant
1
Appellant’s motion to suppress was neither granted nor denied per the clerk’s record. (CR at
26).
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has validly waived the right of appeal, this Court has not acquired jurisdiction over
this case. Marsh v. State, 444 S.W.3d 654, 660 (Tex. Crim. App. 2014)(“…because
Appellant had validly waived his right to appeal, the court of appeals never
acquired jurisdiction.”). If Appellant now wishes to argue that his plea was
involuntary, for example, he will have to raise that argument in a post-conviction
writ. He cannot make that argument in this attempted appeal. See TEX.R.APP.P.
25.2(a)(2).
IV. No jurisdiction:
Appellant’s notice of appeal was due to be filed within thirty days after the
sentence was imposed in open court. TEX. R. APP. P. 26.2(a)(1). So it was due to be
filed by May 5, 2014. Appellant could have filed a motion for extension of time to
file the notice of appeal. TEX. R. APP. P. 26.3. His notice of appeal would have then
been due on May 19, 2014. But he did not file a motion for extension of time to
file his pro se notice of appeal, and did not file his pro se notice of appeal until
March 24, 2015. (CR at 156). It was not timely filed. For that reason alone, this
jurisdiction of this Court was not invoked. See Olivo v. State, 918 S.W.2d 519, 522
(Tex. Crim. App. 1996) (holding that a timely filed notice of appeal is necessary to
invoke the jurisdiction of a court of appeals).
V. No amended trial court certification will be sought by counsel:
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The undersigned attorney has reviewed the clerk’s record of this case and
can find no right of appeal for Appellant. No pretrial motions were filed and ruled
upon by the trial court before Appellant entered his negotiated plea. Nothing in the
record suggests that the trial court gave Appellant permission to appeal. In fact, as
noted above, Appellant explicitly waived the right of appeal in writing as part of
the plea agreement. (CR at 45). In short, undersigned counsel can find no reason to
seek an amended certification from the trial court that would give Appellant the
right of appeal. Moreover, Appellant’s pro se notice of appeal was not timely filed.
Therefore, the undersigned cannot prevent this Court from dismissing this
attempted appeal. Undersigned counsel also cannot raise legal claims—such as an
argument that plea counsel rendered ineffective assistance —on Appellant’s behalf
in this attempted direct appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex.
Crim. App. 2006)(where defendant has no right to appeal after his plea bargain,
dismissal of the appeal is required, with no inquiry by the appellate court into even
possibly meritorious claims).
VI. Relief available to Appellant:
Although the Court of Appeals will dismiss this this appeal, Appellant may
still challenge his conviction after the mandate issues by filing an application for a
writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal
Procedure. Appellant may also seek relief by filing an original petition for a writ of
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certiorari with the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN.
art. 4.04 (West 2005), and TEX. CONST. art. V, § 5. However, undersigned counsel
is appointed to represent Appellant on this attempted direct appeal only. He will
not represent or assist Appellant with any post-conviction or original-proceeding
challenges to his conviction and sentence in this cause. Appellant will have to
pursue those remedies pro se, or with retained counsel.
WHEREFORE, Appellant, by and through undersigned counsel, is
compelled to concede that Appellant has no right of appeal from the underlying
criminal case and must also concede that the Honorable Court of Appeals may
dismiss this appeal for that reason.
Respectfully submitted,
/s/ Richard B. Dulany, Jr.
_________________________________
RICHARD B. DULANY, JR.
Texas Bar No. 06196400
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Suite 310
San Antonio, Texas 78205
(210) 335-0701
FAX (210) 335-0707
richard.dulany@bexar.org
ATTORNEY FOR APPELLANT
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CERTIFICATE OF SERVICE AND COMPLIANCE
I HEREBY CERTIFY that a true and correct copy of the above and
foregoing response has been delivered electronically to the Bexar County District
Attorney’s Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St.,
Suite 710, San Antonio, Texas 78205, on April 15, 2015. The total word count is
1,624, not including the appendix.
/s/ Richard B. Dulany, Jr.
_________________________________
RICHARD B. DULANY, JR.
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Appendix: Trial Court’s Certification of Defendant’s Right of Appeal
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66