ACCEPTED
14-15-00038-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/10/2015 9:14:55 AM
CHRISTOPHER PRINE
CLERK
No. 14-15-00038-CR
FILED IN
14th COURT OF APPEALS
In the HOUSTON, TEXAS
Court of Appeals 6/10/2015 9:14:55 AM
Fourteenth District CHRISTOPHER A. PRINE
Houston, Texas Clerk
Victor Lamar Jenkins,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 299th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-302438
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4811
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is not requested
Table of Contents
Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Argument............................................................................................. 3
Prayer .................................................................................................10
Certificate of Compliance and Service................................................ 11
i
Index of Authorities
Cases
Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) ........... 4
Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006) ............... 4
Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) .............5, 6, 9
Strickland v. Washington, 466 U.S. 668 (1984) ................................. 6
Rules
Tex. R. App. P. 25.2 ............................................................................. 3
ii
No. 14-15-00038-CR
In the
Court of Appeals
Fourteenth District
Houston, Texas
Victor Lamar Jenkins,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 299th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-302438
STATE’S BRIEF
To the Honorable Fourteenth Court of Appeals:
Now comes the State of Texas and files this brief in response to
that of the appellant.
Summary of the State’s Argument
The appellant argues that the trial court abused its discretion
when it failed to hold a hearing on his motion for new trial, which
alleged ineffective assistance of counsel.
1
As an initial matter, the appeal should be dismissed for want of
jurisdiction because the appellant waived his right to appeal and the
trial court’s certification reflects that the appellant has no right of
appeal.
Additionally, the trial court did not abuse its discretion in failing
to hold a hearing on the motion for new trial because the motion did
not establish reasonable grounds for relief. The appellant claimed
that trial counsel promised him that the judge would give him
probation if he pled guilty and that, if he had known there was no
guarantee of probation, he would have accepted the plea bargain
agreement instead.
But the record shows that the appellant rejected the plea bargain
and entered an unnegotiated plea in spite of repeated warnings that
there was no guarantee of probation and that the court could consider
the full range of punishment. In light of this record, the trial court
could have reasonably concluded that appellant could not show a
reasonable probability that the result of the proceeding would have
been different, but for counsel’s conduct. Consequently, the appellant
did not show reasonable grounds to believe he could prove ineffective
2
assistance of counsel at an evidentiary hearing. Under these
circumstances, the trial court did not abuse its discretion in failing to
hold to a hearing on the appellant's motion for new trial.
Argument
The appeal should be dismissed because the appellant
waived his right to appeal.
An appeal must be dismissed if a certification that shows the
defendant has the right of appeal has not been made part of the
record. Tex. R. App. P. 25.2(d). In this case, the trial court's
certification reflects that, “This is an unnegotiated plea and the
defendant has NO right of appeal, except for jurisdictional matters.”
CR 90.
This certification is supported by the record. The following
exchange took place at the plea hearing:
COURT: Knowing that and all the rights you're waiving –
you also understand, sir, that you will – be agreeing to
come to me unnegotiated, you are waiving your right to
appeal? Do you understand that?
DEFENDANT: Yes, Judge.
3RR 7.
3
Additionally, the appellant’s signed plea paperwork specifically
states, “Unnegotiated plea: If there is no plea bargain, then all non-
jurisdictional defects are waived, and you have no right to appeal
except for jurisdictional matters.” SX 1 at 6RR 8. Later, under
“WAIVERS”, the paperwork states, “After consulting with my
attorney, I freely, knowingly, and voluntarily: . . . WAIVE my right to
appeal.” SX 1 at 6RR 9.
A pretrial waiver of appeal is valid if there is a plea bargain
agreement or if the State gave some consideration for the waiver. Ex
parte Delaney, 207 S.W.3d 794, 798 (Tex. Crim. App. 2006); Ex
parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009). The
State gives consideration if it waives its right to jury trial, thereby
allowing the defendant to seek deferred adjudication from the judge.
Broadway, at 695-99. That is exactly what happened in this case. The
State waived its right to a jury trial, which allowed the appellant to
ask the court for deferred adjudication, which is exactly what he did.
SX 1 at 6RR 11; 5RR 5-6.
4
Because the appellant received consideration for his waiver of
appeal, the waiver is valid. Because the waiver is valid, the appellant
has no right to appeal.
Accordingly, this appeal should be dismissed for want of
jurisdiction.
The trial court did not abuse its discretion in failing to hold
a hearing on the motion for new trial.
If this court determines that the appellant did not waive his right
to appeal, it must decide whether the trial court abused its discretion
in failing to hold a hearing on the motion for new trial.
A trial court abuses its discretion in failing to hold a hearing if the
motion for new trial and accompanying affidavits (1) raise matters
that are not determinable from the record and (2) establish
reasonable grounds showing that the defendant could potentially be
entitled to relief. Smith v. State, 286 S.W.3d 333, 338-40 (Tex. Crim.
App. 2009).
The appellant's motion and affidavit raised a matter not
determinable from the record, namely, whether trial counsel
5
promised the appellant that he would receive probation if he pled
guilty and went to the judge for punishment. CR 101-04.
But the appellant did not establish reasonable grounds for relief.
To establish reasonable grounds for relief on a claim of ineffective
assistance of counsel, the defendant must allege facts that would
reasonably show that (1) his counsel's representation fell below the
standard of professional norms, and (2) there is a reasonable
probability that, but for counsel's conduct, the result of the
proceeding would have been different. Smith, 286 S.W.3d at 335,
citing Strickland v. Washington, 466 U.S. 668 (1984).
The appellant’s allegation meets the first prong of Strickland
because no competent trial counsel would guarantee probation in an
unnegotiated plea to an armed, home-invasion robbery.
But the appellant is not able to meet the second prong of
Strickland, which requires him to show that there is a reasonable
probability that the result of the proceeding would have been
different, but for counsel's conduct. The appellant’s motion and
affidavit claim that, if he had known there was no guarantee of
probation, he would have accepted the plea bargain offer of 6 years
6
prison. CR 103. But the record shows that the appellant rejected the
plea bargain and entered an unnegotiated plea in the face of
numerous, repeated warnings that there was no guarantee of
probation and that the court could consider the full range of
punishment.
The trial court admonished the defendant that the punishment
range was “anywhere from five years to 99 years or life,” and the
appellant stated that he understood. 3RR 5. The court further stated:
THE COURT: And, Mr. Jenkins, it is my understanding
that the State – that you have chosen to come to me for
punishment, there is no negotiated plea right now. And I
know [defense counsel] has explained to you the full
range of punishment, which is five years to 99 years or
life, and he's also told you that under the law I can defer a
sentence on an aggravated robbery. I have made no
promises whatsoever to either side at this time. I don't
know what I'll do. You need to be aware that it could go
anywhere from deferred up to 99 or life. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: And you're still happy to go forward with
this plea today?
THE DEFENDANT: Yes.
THE COURT: Knowing that and all the rights you're
waiving – you also understand, sir, that you will – be
7
agreeing to come to me unnegotiated, you are waiving
your right to appeal? Do you understand that?
THE DEFENDANT: Yes, Judge.
THE COURT: Okay. Knowing that and all the rights you
are waiving as set out in State's 1, how do you plead to the
charge of aggravated robbery, a first-degree felony, on or
about the 9th day of November, 2013, guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: Are you pleading guilty because you are
guilty and for no other reason?
THE DEFENDANT: Yes, Judge.
3RR 6-7.
Furthermore, the plea paperwork has his initials next to the
following punishment range: “FIRST DEGREE FELONY: a term of
life or any term of not more than 99 years or less than 5 years in the
Texas Department of Criminal Justice and, in addition, a fine not to
exceed $10,000.” SX 1 at 6RR 7. The paperwork later has his initials
next to, “PLEA OF GUILTY: . . . My plea is entered freely and
voluntarily, and without any coercion, duress or promise of benefit
other than that stated in the plea bargain agreement.” SX 1 at 6RR 10.
Since there was no plea bargain agreement in this case, the statement
implies that there were no promises at all. Finally, the appellant
8
swore that all of the statements on the plea form were true. SX 1 at
6RR 10.
In sum, the trial court could have reasonably concluded that
appellant could not show a reasonable probability that the result of
the proceeding would have been different, but for his counsel's
alleged promise, because the appellant proceeded forward despite
repeated warnings that there were no promises being made and that
he was subject to the full range of punishment.
Because he could not show a reasonable probability that the result
of the proceeding would have been different, the appellant did not
show reasonable grounds to believe he could prove ineffective
assistance of counsel at an evidentiary hearing. Smith, 286 S.W.3d at
345.
Because he did not show reasonable grounds to believe he could
prove ineffective assistance of counsel at an evidentiary hearing, the
trial court did not abuse its discretion in failing to hold to a hearing
on the appellant's motion for new trial.
9
Prayer
The State asks this Court to dismiss the appeal for lack of
jurisdiction.
Alternatively, the State asks this Court to overrule the appellant’s
point of error and affirm the trial court’s judgment.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4811
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
10
Certificate of Compliance and Service
I certify that this brief contains 1,578 words. I further certify that,
on the 10th day of June, 2015, a true and correct copy of this brief was
served, by U.S. mail, electronic mail, facsimile, or electronically
through the electronic filing manager, to the defendant’s attorney,
Paul M. Evans, 811 Nueces Street, Austin, Texas 78701
Angie Creasy
11