PD-0587-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
October 9, 2015 Transmitted 10/9/2015 3:19:38 PM
Accepted 10/9/2015 3:47:51 PM
PD-0587-15 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS OF
THE STATE OF TEXAS
__________________________________________________________________
ANDREW OLEVIA JONES
Appellant,
vs.
THE STATE OF TEXAS
Appellee
________________________________________________________________
BRIEF ON PETITION
Petition for Discretionary Review from the First Court of Appeals
No. 01-14-00501-CR, affirming the conviction of Cause No. 1390646
338th District Court of Harris County, Texas
Honorable Brock Thomas, Judge Presiding
__________________________________________________________________
ALEXANDER BUNIN
Chief Public Defender,
Harris County, Texas
________________________
MELISSA MARTIN
Assistant Public Defender
Harris County, Texas
TBN. 24002532
1310 Prairie, Suite 980
Houston, TX 77002
Phone: (713)274-6709
Fax: (713)437-4319
melissa.martin@pdo.hctx.net
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Andrew Olevia Jones
TDCJ# 01930243
Eastham Unit, TDCJ
2665 Prison Road #1
Lovelady, TX 75851
TRIAL PROSECUTOR: Jim O’Donnell
Assistant District Attorney
Harris County Texas
1201 Franklin St, 6th Floor
Houston, TX 77002
DEFENSE COUNSEL AT TRIAL: Thomas Joseph Lewis
Attorney at Law
1602 Washington Ave
Houston, TX 77007
COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin
Assistant Public Defender
Harris County TX
1201 Franklin St, 13th Floor
Houston, TX 77002
melissa.martin@pdo.hctx.net
PRESIDING JUDGE: Hon. Brock Thomas
338th District Court
Harris County, TX
1201 Franklin St, 15th Floor
Houston, TX 77002
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
TABLE OF CONTENTS .............................................................................................................iii
INDEX OF AUTHORITIES ....................................................................................................... iv
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF THE FACTS.................................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY .............................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1
ISSUE PRESENTED ................................................................................................................... 5
THE COURT OF APPEALS ERRED IN DISMISSING APPELLANT’S APPEAL BY
FINDING THE STATE HAD GIVEN CONSIDERATION FOR THE WAIVER IN
THE PLEA PAPERS AND APPLYING THIS COURT’S HOLDING IN EX PARTE
BROADWAY RATHER THAN ITS HOLDING IN EX PARTE DELANEY, 207
S.W.3D 794 (TEX. CRIM. APP. 2006).
.
SUMMARY OF ARGUMENT ...................................................................................................... 5
ARGUMENT
A. LAW ............................................................................................................................... 6
B. ANALYSIS .................................................................................................................... 12
PRAYER .................................................................................................................................. 15
CERTIFICATE OF SERVICE .................................................................................................... 16
CERTIFICATE OF COMPLIANCE ........................................................................................... 16
APPENDIX
iii
INDEX OF AUTHORITIES
Cases
Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000) ............................................... 7, 8, 9
Ex Parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) ....................................passim
Ex Parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006). ......................................passim
Ex Parte Dickey, 543 S.W. 2d 99 (Tex. Crim. App. 1976)(opinion on original
submission). ..........................................................................................................5, 6, 7, 15
Ex Parte Huskins, 176 S.W. 3d 818 (Tex. Crim. App. 2005) ........................................... 10
Ex Parte Reedy, 282 S.W.3d 492 (Tex. Crim. App. 2009) ............................................... 6, 7
Jones v. State, 01-14-00501-CR, 2015 WL 173491 (Tex. App.—Houston [1st Dist.] mem.
op., not designated for publication) ........................................................................... 1, 13
Monreal v. State, 99 S.W. 3d 615 (Tex. Crim. App.2003) ........................................ 6, 7, 8, 9
Panelli v. State, 709 S.W.2d 655 (Tex. Crim. App. 1986) ..................................................... 8
Smith v. State, 440 S.W.2d 843 (Tex. Crim. App. 1969) ............................................ 6, 7, 15
Ex Parte Thomas, 545 S.W.2d 470 (Tex. Crim. App. 1977) .................................................. 9
Ex Parte Townsend, 538 S.W.2d 419 (Tex. Crim. App. 1976). ............................................ 9
Von Schounmacher v. State, 5 S.W. 3d 221 (Tex. Crim. App. 1999) ................................... 10
Washington v. State, 363 S.W.3d 589 (Mem) 2012) ................................................... 6, 13, 15
Statutes
Tex. Code Crim. Proc. Art. 27(b) ......................................................................................... 8
iv
Tex. Penal Code §12.42(b). ................................................................................................. 14
Tex. Penal Code §22.01(b-1), (1), (2), & (3) .................................................................. 1, 14
Rules
Tex. Rules App. Proc. 25.2(a)(2)......................................................................................... 10
v
Statement of the Case
Mr. Jones, appellant, was charged by indictment of second-degree felony assault
of a family member under sec. 22.01(b-1) on August 23, 2013. The indictment alleged
a prior final felony conviction for aggravated assault of a family member and two
enhancement paragraphs: 1) prior final felony conviction for aggravated robbery; and
2) a prior final felony conviction for possession of a controlled substance, which the
state abandoned (C.R. at 24). He pleaded guilty to the trial court without an agreed
recommendation and requested a presentence investigation report (PSI) and a PSI
hearing before the court.
The trial court, after the hearing held on May 14, 2014, sentenced Mr. Jones to
15 years in the Institutional Division of the Texas Department of Criminal Justice. The
First Court of Appeals dismissed the direct appeal in Jones v. State, 01-14-00501-CR,
2015 WL 173491 (Tex. App.—Houston [1st Dist.] mem. op., not designated for
publication).
Statement of Facts
A. The Pertinent Documents
Mr. Jones initialed the following paragraph in the plea admonishments:
PERMISSION TO APPEAL: If the punishment assessed by the Court
does not exceed the punishment recommended by the prosecuting
attorney and agreed to by you and your attorney, the Court must give its
permission to you before you can appeal any matter in the case, except for
matters raised by written motion filed prior to trial.
(C.R. at 56-7).
1
The first page of the standard, preprinted plea form, “Waiver of Constitutional
Rights, Agreement to Stipulate and Judicial Confession,” set out the charge, the
existence of a prior aggravated assault of a family member, and two felony enhancement
paragraphs, the second of which had a line through it. The second page ended with the
following paragraph:
I intend to enter a plea of guilty and the prosecutor will recommend that
my punishment should be set at_____________________________
_____________________________________________________
WOAR (handwritten)
____________________________________________________
and I agree to the recommendation. I waive any further time to prepare
for trial to which I or my attorney may be entitled. Further, I waive any
right of appeal which I may have should the court accept the foregoing
plea bargain agreement between myself and the prosecutor.
(C.R. at 54). This paragraph was followed by appellant’s signature.
The trial court’s Certification of Defendant’s Right to Appeal indicates that Mr.
Jones “has waived the right to appeal” and is signed by Mr. Jones and his attorney (C.R.
at 61). On the next page in the Clerk’s Record is an untitled document recording the
case number, the names of appellant and the prosecutor, and the words “Plea
Information” (C.R. at 61). This information is followed by a handwritten notation:
“Abandon one e (circled) ¶, plead to PSI WOAR.” This document is not signed by
anyone, nor is it dated. (C.R. at 61).
B. The Plea Colloquies
Mr. Jones’s plea was entered on March 19, 2014 and was at that time reset to
May 14, 2015 for a punishment hearing following a presentence investigation (C.R. at
2
53-54; 64). Both the plea colloquy and the hearing were made on the record (2 R.R and
3 R.R.).
At the March plea colloquy, the trial court and appellant engaged in the following
dialogue:
THE COURT: Mr. Jones, you stand charged by indictment with
the offense of assault of a family member, second offender. State’s alleged
that you’ve once before been convicted of assault of a family member and
you’ve also once before been convicted of the offense of aggravated
robbery.
How do you plead to those enhancements, true or not true?
THE DEFENDANT: True.
THE COURT: The range of punishment in your case, then, is not
less than two no (sic) more than 20 years TDC and a fine not to exceed
$10,000. Do you understand that that’s the range of punishment?
THE DEFENDANT: Yes sir.
THE COURT: How do you plead?
THE DEFENDANT: Guilty.
(2 R.R. at 5).
Further into the colloquy, the trial court admonished that by signing the plea,
Mr. Jones was giving up his right to a jury trial and to call witnesses, question witnesses,
and even testify on his own behalf. The court mentions nothing about giving up his
right to appeal (2 R.R. at 7). The court then states: “This case is a plea without an agreed
recommendation. That means it is what it says (sic), that there is no agreement between
3
you and the State as to what the resolution of this case should be. Do you understand
that?” (2 R.R. at 7-8).
At the hearing, the trial court conducted a second plea colloquy prior to
proceeding with testimony (3 R.R. at 6-9). This time, the court explained that the range
of punishment at the original plea had been incorrect:
[Y]ou stand charged by indictment with the offense of assault on a family
member by impeding breathing. There’s (sic) two enhancement
allegations: One, that you’ve once before been convicted of aggravated
assault of a family member; and that you’ve once before been convicted
of aggravated robbery in 1992. The other enhancement allegation alleging
that you committed the offense of possession of a controlled substance in
the 262nd District Court in June 1999, the State had abandoned that
enhancement allegation.
But with the two enhancement allegations, how do you plead to
those, true or not true?
THE DEFENDANT: True.
THE COURT: All right. Just to be clear – and I believe the
paperwork has been corrected to indicate this – that with those two
enhancement allegations, that does, in fact, make your range of
punishment in your case not less than five years nor more than 99 or life
confinement in the Texas Department of Criminal Justice Institutional
Division and a fine not to exceed $10,000.
Do you understand that that’s the range of punishment?
THE DEFENDANT: Yes, sir.
(3 R.R. at 6-7).
The court then quickly went over the rest of the plea conditions and again said
nothing about Mr. Jones having waived his right to appeal. (3 R.R. at 7-9). Appellant
again pleaded “true” to the “two enhancement allegations” and “guilty” to the assault
on a family member (4 R.R. at 10). After confirming that appellant still wished to plead
4
guilty, the trial court proceeded with the sentencing hearing (4 R.R. at 10). In neither
colloquy did the court mention Mr. Jones’s waiver of appeal.
The court of appeals found the state had given consideration by abandoning one
of the enhancements at the time of Mr. Jones’s plea. The court reasoned that this case
is governed by Ex Parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009), wherein this
Court held “a defendant may knowingly and intelligently waive his entire appeal as part
of a plea, even when sentencing is not agreed upon, where consideration is given by the
state for that waiver.” Broadway, 301 S.W.3d at 699.
Issue Presented
The Court of Appeals erred in dismissing appellant’s appeal by finding the
state had given consideration for the waiver in the plea papers and
applying this Court’s holding in Ex Parte Broadway rather than its holding
in Ex Parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006).
Summary of Argument
The court of appeals wrongly dismissed Jones’s appeal. The concerns this Court
has consistently expressed as to whether a pretrial waiver of appeal is enforceable are
present in the case, namely that the defendant has no way of knowing with certainty the
punishment that will be assessed and cannot anticipate the errors that may occur during
the trial. Ex Parte Dickey, 543 S.W. 2d 99 (Tex. Crim. App. 1976)(opinion on original
submission). The record does not reflect the state gave consideration for Mr. Jones’s
waiver of appeal. This Court’s holdings in Ex Parte Delaney and Washington v. State, 363
5
S.W.3d 589 (Mem) 2012), not Ex Parte Broadway, state the law governing the facts of
this case.
Argument
A. Law
In order for a waiver of the right to appeal to be valid, the waiver must be
knowing, voluntary, and intelligent. Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim.
App. 2003).
In Ex Parte Reedy, 282 S.W.3d 492, 496-98 (Tex. Crim. App. 2009)—handed
down the same year as Broadway—this Court surveyed its cases regarding pretrial
waivers of appeals, as a starting point for its subsequent analysis of Reedy’s waiver of
his habeas writ. Tracing the development of circumstances that would render a waiver
knowingly, voluntarily, and intelligently made, the Court began with Smith v. State, 440
S.W.2d 843, 844 (Tex. Crim. App. 1969)(waiver of right to file motion for new trial
invalid where waiver was made prior to trial at time where he could know whether he
would have grounds to file motion) and Ex Parte Dickey, 543 S.W.2d 99 (Tex. Crim.
App. 1976)(opinion on original submission)(extended Smith to pretrial waivers of appeal
as the right to file not matured so cannot know punishment with certainty or anticipate
errors that may occur at trial). Id at 496.
The Court cited Dickey to demonstrate three concerns regarding pretrial waivers:
[T]he procedure of requiring the defendant to waive the right of appeal
prior to trial should be condemned. At this point, the right has not yet
6
matured, the defendant has no way of knowing with certainty the
punishment that will be assessed and cannot anticipate the errors
that may occur during the trial. Surely a waiver of appeal under such
circumstances cannot be knowingly and intelligently made.
Id, citing Dickey, 543 S.W.2d at 101.
The Reedy Court continued its review of these cases up to and including Delaney
and concluded with the following summation of the state of the pretrial waiver of appeal
law at that time:
Thus, we have held that a defendant may waive his right to appeal, but
that his waiver will be knowingly and intelligently made only under
circumstances in which, and to the extent that, he is aware of what has
occurred in the trial proceedings. Only then is he in a position to know
the nature of the claims he could have brought on appeal but for his
waiver.
Id at 498.
Two of the cases discussed within Reedy upheld waivers. Blanco v. State, 18 S.W.3d
218 (Tex. Crim. App. 2000) and Monreal v. State, 99 S.W. 3d 615 (Tex. Crim. App.2003).
In Blanco, the defendant waived his right to appeal after he was convicted but before his
sentence. Blanco, 18 S.W.3d at 219. In exchange for the waiver, the state agreed to
recommend a 16-year punishment to the trial court; the court abided by the
recommendation. Id. Blanco appealed and, on dismissal by the court of appeals, filed a
petition for discretionary review in this Court, arguing his waiver was invalid because it
was made prior to punishment Id.
On review, this Court, in upholding the waiver, reasoned that the concerns
originally expressed in Smith and Dickey--unanticipated errors at trial and uncertainty
7
regarding punishment--were not present in Blanco’s case.1 Blanco had been present
during the trial and would have been aware of any appealable error prior to signing the
waiver. Id. And any error there might have been in the punishment phase was rendered
moot because the trial judge followed the terms of the punishment agreement. Id at
220.
In Monreal, the defendant signed the waiver after conviction and assessment of
punishment by a jury and judgment rendered by the trial court. Monreal 99 S.W.3d at
616. The record does not reveal why Monreal chose to sign the waiver under those
circumstances. Monreal had argued that the waiver was unenforceable because he had
had no negotiated plea bargain with the state, citing Blanco as authority. Id at 616-17.
This Court upheld the waiver as knowingly and intelligently made because at that point
he “would [have known] what his punishment would be and what errors [had] occurred
during trial at the time of his waiver.” Id at 618.
The overriding principle in all these opinions is that pretrial waivers can only be
knowing and voluntary, and thus valid, if the defendant can know with certainty the
consequences of the waiver at the time he makes it. This principle is reiterated in Delaney,
and explicitly distinguishes the circumstances of Delaney’s waiver to those of Blanco
and Monreal:
1
The first concern—premature motion for new trial and notice of appeal, respectively—were
disposed of by the passage of art. 27(b) of the Texas Code of Criminal Procedure and Panelli v. State,
709 S.W.2d 655, 657 (Tex. Crim. App. 1986).
8
In Monreal, we explained that Blanco does not require a plea agreement for
a waiver to be binding; rather, the importance of the plea agreement in
Blanco was that it determined that Appellant’s waiver was knowing and
intelligent by specifying the punishment…. Monreal held that there is no
requirement that a waiver be bargained for in order for it to be binding….
However, the unbargained-for waiver of appeal in Monreal was signed after
his punishment was assessed and he was sentenced, alleviating the
concerns raised in Thomas and Townsend.
Delaney, 207 S.W.3d at 798.
Delaney, which was before this Court in a habeas proceeding, involved an open
plea and a motion for deferred adjudication. Id at 207 S.W.3d at 795-96. Delaney was
given a choice of accepting the trial court’s punishment or asking for a jury to assess his
sentence. He chose an open plea to the trial court in hopes of being granted deferred
adjudication. At the plea hearing, he waived the right to a jury trial, pleaded guilty, and
stipulated to the truth of the allegations in the indictment. The court granted him ten
years deferred adjudication. Delaney, 207 S.W.3d at 796.
The court asked applicant if he wanted to accept this sentence or would
like a jury to determine punishment. He chose to accept the court’s
deferred sentence. Applicant was informed of his right to appeal. He
testified that he understood his rights and signed a waiver of appeal. The
waiver of the right to appeal states that “he does not wish to appeal his
conviction and expressly waives his right to appeal.”
Id.
Delaney was eventually adjudicated and sentenced to life in prison; the trial court
refused to grant him permission to appeal. Id at 795.
This Court, in analyzing Delaney’s situation, distinguished it from that of
Blanco, in that Delaney had no plea bargain, stated:
9
Even when a waiver is bargained for in exchange for deferred
adjudication, if the plea agreement does not contain a recommended
punishment to be imposed if guilt is adjudicated, then the waiver may not
be knowing and intelligent and thus may not be valid.
Delaney, 207 S.W.3d at 799, citing Ex Parte Huskins, 176 S.W. 3d 818, 819 (Tex. Crim.
App. 2005)(even if parties have plea bargain as to punishment if adjudication occurs,
the trial court is not bound to follow said agreement) & Von Schounmacher v. State, 5 S.W.
3d 221, 223 (Tex. Crim. App. 1999)(regardless of whether deferred adjudication was
part of plea bargain and contained a sentence recommendation for sentence at
adjudication, when adjudication occurs trial court is restricted in sentence only by
statutory limits).
In Broadway, this Court recognized that there are some plea agreements between
defendants and the state that do not fall within the definition of “plea bargain” in Rule
25.2(a)(2). Broadway, 301 S.W.3d at 698, 699; Tex. Rules App. Proc. 25.2(a)(2). That rule
defines a plea bargain as:
[A] case in which a defendant’s plea of guilty of nolo contendere and the
punishment did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant….
Tex. Rules App. Proc. 25.2(a)(2). The rule provides in those cases the defendant cannot
appeal without permission from the trial court. Id.
Broadway’s circumstances were almost identical to Delaney’s. He was facing a
punishment range of 25 years to life in prison. Broadway, 301 S.W.3d at 696. The state’s
recommendation was 25 years, the minimum, in exchange for a plea. Id. He rejected the
10
state’s offer, waived his right to appeal and entered an open plea to the trial court in the
hopes of the court granting him deferred-adjudication community supervision and drug
treatment. Before Broadway entered his plea, the trial court told him his options: “Jury
trial or you could take a plea bargain, which is a minimum of 25 years in prison or do
an open plea which [would] allow me to consider giving some kind of drug treatment
on probation.” Id. At punishment, the judge sentenced him to 25 years. Id.
Broadway filed claims of ineffective assistance of counsel on the grounds that
his attorneys did not inform him of his right to appeal and that they let him waive his
right to appeal. Id. One of his lawyers filed an affidavit for the evidentiary hearing stating
that Broadway had “waived his right of appeal in order to induce the [S]tate to waive
its right to force a jury trial in order that he could ask the court to give him deferred
probation with drug treatment.” Id. The trial court included that assertion in his findings
of facts and conclusions of law, concluding Broadway had knowingly and voluntarily
waived his right to appeal before pleading; the court recommend against relief.
This Court set the case for submission “to determine whether a defendant can
voluntarily waive his entire appeal as part of plea, even when sentencing is not agreed
upon, where consideration is given by the State for that waiver.” Id.
In finding that Broadway did voluntarily waive his entire appeal, the Court
distinguished his circumstances from Delaney’s. The Court pointed out that there was
no bargain in Delaney, whereas in Broadway, although he had rejected the state’s plea
offer, there was a “bargain of a different sort.” Id at 697-98. Because the state had not
11
wanted to agree to Broadway’s waiving a jury trial after he had rejected its plea bargain
offer, the trial court found the applicant had “induced the State to consent [to
permitting him to waive a jury trial].” This Court agreed the state’s consent, under those
circumstances, constituted consideration, holding his waiver was knowing because he
“knew the consequences of his waiver.” Id at 698.
B. Analysis
In Mr. Jones’s case, there is no evidence of a bargain such as the one in Broadway.
The mere fact that the state abandoned the second enhancement paragraph does not
indicate that the plea waiver was given in exchange for the abandonment. Mr Jones
initialed paragraph 3 in the preprinted omnibus admonishments signed before entering
his plea, even though it was inapplicable to his case, since he was intending to plead
without an agreed sentencing recommendation (C.R. at 56-57). He signed the
boilerplate plea form, “Waiver of Constitutional Rights, Agreement to Stipulate and
Judicial Confession,” which negates the existence of a recommendation by the
prosecutor with a handwritten “WOAR” in the blank provided for the terms of the plea
bargain the form was designed to anticipate (C.R. at 54). Further, the boilerplate waiver
of appeal is conditioned on the court’s accepting “the foregoing plea bargain between
myself (sic) and the prosecutor.” (C.R. at 54). There was no “foregoing plea bargain.”
The court of appeals characterizes the document following the plea papers as
though it were one of the plea papers but it bears no indications that it is anything other
than what it says it is: “Plea Information” (C.R. at 61). It certainly does not “memorialize
12
[the prosecution’s] agreement to drop the enhancement in exchange for Jones’s plea
without an agreed recommendation.” Jones, 2015 WL at *2. There is simply no evidence
supporting such an agreement. Further, Broadway endorses a bargain wherein
consideration is given by the state for the defendant’s waiver of appeal, not his plea.
Broadway, 301 S.W.3d at 696 and passim.
Finally, although Mr. Jones signed the trial court’s certification indicating he had
waived his right to appeal, there is no way of knowing whether the box indicating waiver
was checked prior to his plea or when the judge accepted it.
This Court reiterated its consistent position regarding pretrial and presentencing
appeal waivers as recently as 2012, stating “…when a defendant waives his right to
appeal before sentencing and without an agreement on punishment, the waiver is not
valid.” Washington v. State, 363 S.W.3d 589-90, (Mem) (Tex. Crim. App. 2012). In her
concurring opinion in that case, Chief Justice Keller wrote:
Although Delaney involved a waiver of appeal at the original guilty plea,
before adjudication was deferred, rather than at the adjudication hearing,
the rationale for holding the waiver to be involuntary in Delaney was “the
concern that unanticipated errors may occur at the punishment phase of
trial.”5 The same concern exists here. I therefore agree with the Court that
the rationale in Delaney applies in this case and that appellant's waiver was
invalid.
Id at 590-91 (citations omitted).
In this case, the trial court, in the first plea colloquy, misinformed Mr. Jones as
to the range of punishment he would face at the punishment hearing (2 R.R. at 5). The
court was mistaken in two ways. The prior aggravated assault on a family member
13
paragraph is not a punishment “enhancement.” The prior conviction for assault of a
family member, second offender, is an element of §22.01(b-1), which makes assault a
second-degree felony if (1)the offense is committed against a family member; (2)the
defendant has been previously convicted of assault of a family member; and (3)the
offense is intentionally, knowingly, or recklessly impeding normal breathing. Tex. Penal
Code, §22.01(b-1)(1), (2), and (3). The punishment range for a second-degree felony is
two to 20 years in prison.
The remaining prior felony conviction allegation is an enhancement paragraph
that increases the second-degree felony punishment range from two to 20 years to that
of a first-degree felony, namely five years to 99, or life in prison. Tex. Penal Code,
§12.42(b). The court, therefore also misstated the range of punishment Mr. Jones was
facing.
In the second colloquy, the trial court arrived at the correct range of punishment
but again misstated the legal situation--he described a third-degree offense with two
prior felony enhancements, when in fact the offense with which Mr. Jones was charged
is a second-degree felony with one prior felony enhancement. 2
2
The judgment correctly stated the charge was a second-degree felony; however it indicated that there
had been only one enhancement and it was abandoned (C.R. at 91). These issues were addressed in
petitioner’s brief on appeal.
14
These errors are precisely the type that have concerned this Court about pretrial
waivers of appeals all through line of cases beginning with Smith and Dickey and
continuing through Delaney and Washington.
Prayer
Petitioner asks the Court to reverse the First Court of Appeals’ dismissal of his
appeal because the record does not support that court’s finding that the state bargained
for the pre-punishment waiver of appeal. He further asks that the Court remand his
case to the court of appeals and order all appropriate relief.
Respectfully Submitted,
ALEXANDER BUNIN
Harris County Public Defender
/s/ Melissa Martin
______________________________
MELISSA MARTIN
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, TX 77002
Phone 713-274-6709
Fax 713-437-4319
Texas Bar No. 24002532
melissa.martin@pdo.hctx.net
15
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Petition for Discretionary Review was e-
served to Alan Curry, Assistant District Attorney, Harris County Texas and to the State
Prosecuting Attorney.
/s/Melissa Martin
_______________________________
MELISSA MARTIN
CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 3,811 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by Microsoft
Word software.
3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.
/s/ Melissa Martin
____________________________
MELISSA MARTIN
16
',-j.
"
(
" , ""'
~IONtSH~IENTS
Pursuant to Article 26.13 of the T~xas Coqe of Criminal Procedure, the Court hereby admonishes in
wri ti ng the Defendant in the above-captioned cause of action as follows and instructs the Defendant to
place his initials by each of the following admonitions to indicate that he fully understands each
~ttion.
~. You are charged with the felony criminal otfense of ih:'b<.l \t ~Ll ~ b\.e:--
"J7~J¥d,#
1
~1kI~
2. The State moves to reduce such charge to the felony / misdemeanor offense of _ _ _ __
If convict~d of this offense. you face the following range of punishment:
FIRST DEGREE F ONY: a tenn of life or any tenn of not more than 99 years or less than 5
years in the Institutional Di . ion of the T. s Department of Criminal Justice and. in addition. i.l
poss i ble tine not to exceed $10. O.
~nhanced
with one prior felony conviction): a tenn of life or any
term of not more than 99 y rs or less than 15 yt!ars in the [nstitutional Division of the Texas
Department of Criminal Just' e and, in dition. a poss.ib/e tine not to exceed S 10.000.
SECOND DEGREE fELONY: J tenn of not more than 20 \'~ars or kss than 2 ycars in the
fnstitutional Division of the Texas Departm~nt of Criminal Justice and: in addition. a possibl'e tine nor [0
~xceed S10.000. .
.
SE€OND DEGREE FELONY (~nhanced with one prior felony conviction): a tenn of life or any
[~rm of not more th'J-n 99 y~ars or less than 5 yc=ars in [h~ Institutional Division of the Tc=xas Department
uf C ri m.inal Justice and. in addition~ a possible !il1e not to ~xceed S10.000.
rHIRD DEGREE FELO~Venn of not more than 10 \'~ars or kss than 2 \'~ars in the
Institutional Division of the Texas ~ment oiCriminal Justice and. in Jddition. a possible rine not to
..::x~e~d S10.000.
55
_ _ _ HABITUAL FELONY OFFENDER: a tenn of life or any tenn of not more th
ars in the Institutional Division of the Texas Department of Criminal lusti .
DEGREE FELONY (enhanced with one prior felony convict' n): a term of not more
than 20 years or ess than 2 years in the Institutional Division of the Te, Department of Criminal
Justice and, in addi ' n, a possible fine not to exceed $10,000.
STATE JAIL F ONY: a tenn of no~ more than 2 years or Ie than 6 months in a State lail and,
in addition, a possible tine t to exceed $10,000.
_ HABITUAL STATE J L FELONY: any tenn of t more than 20 I 10 years or less than 2
years in the Institutional Divisio of the Texas Depart nt of Criminal Justice and, in addition. a
possi ble tine not to exceed $10,000.
STATE JAIL FELONY WITH A WEAPON OR A PRIOR CONVICTION FOR A
30 OFFENSE UNDER ART. 42.1 -2,:COO IMINAL PROCEDURE: a term of not more than 10
years or less than 2 years in the [nstitutional . ision of the Texas Department of Criminal Justice and,
in addition, a possible tine not to exceed SID ' 00.
PENAL CODE SECTION 12.44 (a): a felony
~onviction punished as a misdemean by a term of n more than one year in a county jail and a
possi ble tine not to exceed S4,000.
__ SENTENCED L CODE SECTION 12.44 (b): a
tnisdemeanor conviction pun' hed by a tenn of not more than one ear in a county jail and a possible
tine not to exceed $4,000. "
E~1EANOR: a misdemeanor conviction punishe by a tenn of not more than
one year in a count Jail and a possible tine not to exceed $4,000.
_ ~flSDE~tEANOR: a misdt!meanor conviction punished by a tenn of not more than
180 Jays ye in a county jail and a possible tine not to exceed 52.000.
THER: the range of punishment is by continement in the Institutional Division
Oepan nt of Criminal Justice I county jail (circle one) for any tenn of not more than years and
not less than years: in addition there is a possible I mandatory (circle 0ne) not to exceed
5- - - - - -
\,
tlb
2, PLEA BARGAINS: If no plea bargain agreement exists. the recommendation of the
arosecuting attorney is not binding on the Court. If a plea bargain agreement does exist. the Court \\ii 11
inform you whether or not it will follpw that plea bargain agree"ment berore making any tinding on your
plea. Should the Court reject the plea bargain agreement. you will be permitted to withdraw your plea.
if you so desire.
U J. PERyliSSION TO APPEAL: [f the punishment assessed by the Court .ioes not exceed the
punishml!nt recommended by the prosecuting attorney and agreed to by you and your attorney. the Court
56
,. / -" ,
/
:-.
i
~ ,I
'
, must give its permission to you before you can appeal any matter in the case, except for matters that
\vere raised by written motion filed prior to trial.
114, C[TIZENSH[P: [f you are not a citizen of the United States of America, a plea of either
Guilty or Nolo Contendre (no contest) for this offense may result in your deportation, or your exclusion
from admission to the country, or the denial of your naturalization under applicable federal law.
U 5, DEFERRED ADJUDICATION: If the Court defers adjudicating your guilt and places you
on community supervision, upon any violation of any imposed condition of your community
supervision. you may be arrested and detained as provided by law. You will then be entitled to a
hearing limited to the detennination by the Court of whether or not to proceed with the adjudication of
your guilt on the original charge. No appeal may be taken from this determination. After an
adj udication of guilt, all proceedings, including the assessment of your punishment and your right to
appeal, continue as if adjudication of guilt had not been deferred.
lL6. WAIVER OF PRE·SENTENCE REPORT: As the Defendant accused of a felony criminal
offense in the above·captioned cause of action I have consulted with my attorney, whose name is signed
be low. regarding the application of Article 42.12( 9)(a) of the Texas Code of Criminal Procedure to my
case which provides that, prior to imposition of sentence ,by the Court, the Court shall direct a
community supervision onicer to repon to the Coun in writing on the circumstances of the offense with
which I am charged. including my criminal history, if any, and my social history. [understand that tht:
Court is not required to order such a repon if the only available punishment is imprisonment. tUliess I
request that such a report be made. I hereby do knowingly and voluntarily waive my right to the
preparation of a report by a community supervision ofticer and expressly request that such a report not
be prepared, except as may otherwise be required by law.
~7. DRIVER'S'LICENSE:'Your driver's license may be suspended as a result of the disposition
of this case. rn certain circumstances. you may be eligible to receive a restricted driver's license during
the period of suspension at the discretion of the Court.
US, Comes now the defendant. joined by my Jttomey, and hereby states that the foregoing
. \dm~nishments. Statements, and \Vaivers. as well as the attached written \Vaivcr of Constitutional
Ri ghrs. Agreement to Stipul-ate 'and Judicial Confession. were read by me or read to me and were
~:'(pJained [0 me in the language that I read. write. or understand by my attorney. and / or an int~rpreter.
namely "before I signed them. I further state that l fuJ ly
understand the foregoing AJmonishm~nts. Statements. and \Vaivers. as well as [he attached written
\Vaiver of Constitutional Rigfi~s. Agreement to Stipulate and Judicial C;onfession. and that I am aware of
I ~bl - ~c,.;.-).
• "A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant's
right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in
which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant - a defendant may appeal only: (A) those matters that were raised by a written motion filed
and ruled on before trial, or (B) after getting the tria1 court's pennission to appeal." TEXAS RULES OF APPELLATE PROCEDURE
25.2(a)(2). 60
,,'
Case # i 5Cf otCf t
----------------------------
Defendant Name t!neh.w ~.L-S'
I
- -- - '- ._. - -" -
- ' _. ..-_.- - - ' - ._". _- " - ' . -- . . . , ..,
prea information
A~""~ ~ @? '71;>1 pU k. f'7,I: [..bAI2
D. A. Name:l!l.& 2i,z1~
RECORDER'S MEMORANDUM
This instrument is of poor quality
at the time of imaging
61