ACCEPTED
03-15-00035-CR
3855020
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/22/2015 8:52:22 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00035-CR
ANDREW ALBERT WOLFFORD § IN THE THIRD FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
VS. § DISTRICT COURT OF AM
1/22/2015 8:52:22
JEFFREY D. KYLE
THE STATE OF TEXAS § APPEALS OF TEXAS Clerk
MOTION TO DISMISS
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes the State of Texas, Appellee in the above styled and numbered
cause, and moves this Honorable Court to dismiss the Appeal related to ANDREW
ALBERT WOLFFORD’s trial court cause number CR2013-401, and for good
cause would show the following:
I.
Appellant pled guilty to the offense of Possession with Intent to Deliver a
Controlled Substance PG 1 > 4 Grams < 200 Grams, committed on November 23,
2012. Judgment of Conviction by Court at 1, attached. The Appellant entered into
a signed plea agreement with the State in which he waived his right to appeal from
the judgment and sentence. Waiver & Plea Bargain Agreement, State’s Exhibit 1 at
3, attached. The Court followed the plea agreement, sentencing Appellant to 35
years confinement in TDCJ on November 3, 2014 in Cause Number CR2013-401.
In the trial court’s certification, signed by Appellant and his counsel, the trial court
1
noted the defendant had waived and had no right of appeal. Trial Court’s
Certification at 1, attached.
II.
Appellant filed his untimely notice of appeal with the Court on January 16,
2015. As agreed to in the plea and stated in the Trial Court’s Certification of
Defendant’s Right of Appeal, the Appellant has waived the right of appeal and has
no right of appeal in this case. See Tex. R. App. P. 25.2(a)(2), (d); see also Blanco
v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (finding no valid or
compelling reason defendant should not be held to his plea bargain waiver of his
right to appeal). The appeal should therefore be dismissed.
III.
WHEREFORE, PREMISES CONSIDERED, the State’s counsel
respectfully prays that the Court dismiss Andrew Albert Wolfford’s Appeal.
Respectfully submitted,
/s/ Joshua D. Presley
Joshua D. Presley, SBN: 24088254
preslj@co.comal.tx.us
Comal Criminal District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Ph: (830) 221-1300 / Fax: (830) 608-2008
2
CERTIFICATE OF SERVICE
I, Joshua D. Presley, assistant district attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this Motion to Dismiss has
been sent to Appellant ANDREW ALBERT WOLFFORD’s attorney of record:
Mr. E. Chevo Pastrano
chevo@pastranolaw.com
Attorney for Appellant
Old Cotton Exchange Building
202 Travis, Suite 307
Houston, TX 77002
At the above email address by electronic mail through efile.txcourts.gov on this
22nd day of January, 2015:
/s/ Joshua D. Presley
Joshua D. Presley
3
CASE No. CR2013-401 COUNT SINGLE
INCIDENT No.fi'RN: 9212964818 TRS: A001 r
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STATE ID No.: TX-06866421 §
JUDGMENT OF C ONVICTION BY COURT-WAIVER OF J URY TRIAL
Date Judgment
J udge Presiding: H oN. DIBRELL WALDRIP Entered: NOVEMBER 3, 2014
Attorney for
Attorney for State: SAMMY MCCRARY Defendant: JAMES PEPLINSKI
Offense for which Defendant Convicted:
POSSESSION WI'f'H
INTENT TO DELIVER A CONTROLLED SUBSTANCE PG 1 > 4 GRAMS < 200
GRAMS
Charging Instrument: Statute for Qffense:
INDICTMENT 481.112 (d) HEALTH AND SAFETY CODE
Date of Offense:
NOVEMBER 23, 012
Degree of Qffense: Plea to Offense: Findings on Deadly Weapon:
FIRST DEGREE ELONY ENHANCED TO
GUILTY NIA
HABITUAL OFF NDER [12.42 (d)]
Terms of Plea Bargaint
THIRTY-FIVE (35) YEARS CONFINEMENT IN THE INSTITUTIONAL DMSION OF THE TEXAS
DEPARTMENT OF CRIMINAL JUSTICE AND $140.00 RESTITUTION
Plea to 111 Enhancement Paragraph: TRUE Findings on 1'" Enhancement Paragraph : TRUE
Plea to 2nd Enhancement Paragraph: TRUE Findings on 2nd Enhancement Paragraph: TRUE
Plea to 3n1 EnhancemJpt Paragraph: TRUE Findings on 3rd Enhancement Paragraph: TRUE
Dale Sentence Impoaep: NOVEMBER 3, 2014 Date Sentence to Commence: NOVEMBER 3, 2014
Punishment and Pia~ THIRTY-FIVE (35) YEARS CONFINEMENT IN THE INSTITUTIONAL DMSION,
of Confinement: TDCJ
THTS SF.NTENCE SHALL RUN CONCURRENTLY.
0 SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR N/A
Court Costs: Restitution: Restitution Payable to:
0 VICTIM (see below) 181 AGENCY/AGENT (see below)
TRXAS DEPARTMENT OF PUBLIC SAFETY
RESTITUTlON ACCOUNTING
$0.00 $0.00 $140.00 P.O. BOX 4087
AUSTIN, TEXAS 78773·0130
HDQ·l212·11G91
Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRrM. PROC. chapter 62
T he age of the victim at the time of the offense was N/A.
If Defendant is to serve sentence in TQCJ. enter incarceration periods in chronological orde r.
Time FROM 1U2312012 TO 02/28/2013 06/13/2013 TO ll/0312014
Credited: If Defendant is to serve sente nce in counly juil ur i!! lriven credit toward fine !!nd costs. enter days credited below.
N/ADAYS NOTES: NIA
All pertinent iofonnation, names and assessments indicated above are incorporated into tbc language ui the judgment below by reference.
This cause was called for trial in COMAL County, 'T'exMI. The State appeared by her District Attorney.
CoW1Sel / Waiver of Couusel