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 .l § CO MAL COUNTY, TEXAS
Defendant
..._,. JUDICIAL CONFESSION
C>TIDI U
&
PLEA BARGAIN AGREEMENT
I. ADMONISHMENTS, ART. 26.13, C.C.P.: The Defendant is hereby admonished in writing that if convicted, the
uerenaam may oe semencea w1mm me pun1s ·~"' 'd""~ OdOh~U " ' UO~
1. Punishment Range:
D Cagital Felony {death genalrl waived} Imprisonment in the Institutional Division of the Texas
Department of Criminal Justice for a term of Life.
!1if Habitual Offender Imprisonment in the Institutional Division of the Texas Department of Criminal
Justice for Life or for any term or not more man ~H:I years or Jess man Lb years.
D 1st Degree Felony ~~ h~•o, "' thA
;nfth;~ matter. This waiver also includes, but is not limited to, any and all statements
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contained in any pre-sentence investigation report(s) reviewed by the Court in deciding tne sentence to oe
imposed in this matter.
6. Waive the right to file a motion for new trial.
7. I understand my right to appeal but, having entered into a plea agreement with the State and as part of
."" :;, · 1 ·~;.,.; mv ,;nht tn from the ;udnment and sentence or probated
sentence aareed uoon.
8. I understand my rights to seek relief pursuant to a post conviction writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure but, having entered into a plea agreement with the State
and as part of that agreement before sentencing, I knowingly, intelligently, and voluntarily waive my light to
seek relief from the judgment and sentence or probated sentence agreed upon pursuant to a post
conviction writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure.
9. Waive the right to a pre-sentence report and request that none be made.
10. Waive any review set out under Texas Code of Criminal Procedure, Art 42.12, Sec. 20 (a). The parties
have fully negotiated the details of this agreement including the length of the term of community
supervision. Therefore, the Defendant shall not ask for, shall not be considered for, and shall not receive
an early termination of community supervision unless otherwise specified in this plea bargain agreement.
11. Waive the riQht to seek shock community supervision under Texas Code of Criminal Procedure_, Art 42.12,
Sec .. 6 or Texas Code of CriminaTVroceaure, A;;_ 4L.1L, :sec. ',:'~'!;, ~ • ua~~ ou_"Y_ .
_v:"
superv1s1on. T~~refore, the Defend~~·t shall not ask for, shall not be considered for, and shall not receive
shock community supervision under Texas Code of Criminal Procedure, Art 42.12, Sec. 6 or Texas Code
of Criminal Procedure, Art 42.12, Sec. 15(f) unless otherwise specified in this plea bargain agreement,
IV. STIPULATIONS AND JUDICIAL CONFESSION-- Now comes the Defendant in writing and in open court in the
above entitled and numbered cause represented by his attorney with whom he has previously consulted and
makes tne tollowtng JUutctao conoeSbiV"lbJ cu
''"'"
1. "I do admit and judicially confess that I knowingly and intentionally and unlawfully committed the offense(s)
alleged in the indictment or information in this cause at the time and place and in the manner alleged and
that such allegations are true and correct, and that I am in fact GUlLTY of the offense alleged or as a
lesser included offenses of the oftense(s) charged in the indictment or information. "
"Under Texas Code of Criminal Procedure Article 1 .15, I hereby consent and stipulate in writing, in open
2. ··h~ . . .
of '"'~timonv bv-affidavits,
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f""'\'\7 Defendant's Initials Page 3 of6- Plea Bargain Agreement
written statements of witnesses, and any other documentary evidence in support of the judgment of the
Court."
3. "I voluntarily enter my plea of GUlL TY to said offense, and my plea is not influenced by any considerations
of fear or any persuasion or any delusive hope of pardon. In making my plea of guilty I am not relying on
any advice, information or agreement not made to the Court at this time."
4. "I have been advised by my attorney that if I am convicted or placed on deferred adjudication for a
reportable sex offense under Chapter 62 of the Code of Criminal Procedure I will be required to meet the
5. "I have read this entire document, discussed it fully with my attorney and understand this document
completely and I am aware of the consequence of my plea, and am satisfied I have been effectively
represented."
6. "If I am not a citizen of the United States, I have inquired into, understand and accept the immigration
consequences of this plea bargain agreement."
7 n• nishment recommendation is for deferred adiudication or community supervision, I have inquired
"If th.:.
into, understand and accept the possible ranges of conditions of commumty superviSion, 1nclud1ng mose
conditions that may require my confinement in a facility up to and including S.A.F.P.F."
V. PLEA AGREEMENT AND SENTENCING RECOMMENDATION In consideration of
The Defendant Agreeing:
1. to nlea "Guilt"'" to and be found guilty of the offense(s) of:
2. to judicially confess and stipulate as specified in paragraph IV, above;
3. to waive his/her rights as specified in paragraph 111, above;
4. to, if placed on deferred adjudication or com~unity supervision, participate 1n any an_d au.,::o.~~lttons or
?omm_unrty superviSion 1nc Uull•~ ~·•u::.c ..... u •u• .. 7 -7
tncludtng S.A.F.P.F.;
5. that the fine and community service restitution hours imposed in this cause shall run consecutive to and
be cumulated with the fine and community service restitution hours imposed in any other cause, whether
before this court or any other court, unless otherwise specified in this plea bargain agreement;
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6. ~ to plea "True" and Agree to anafformat"1venn01ng 10 e l(S)
_ _ _ _ Other: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
7.
The State Agrees to recommend the following sentence:
'" .J_ - £:~)
Yv- '" '•· ~t::;, . I v~"rs\ imnrisonment in the
Institutional Division of the Texas Department of Criminal Justice Texas State Jail Facility.
2. _ _ _ _ _That the Defendant be placed on _ _ _ years of regular community supervision.
3. _ _ _ _ _That Defendant be placed on _ _ _ years of deferred adjudication community supervision.
d\.
+t\1/ Defendant's Initials Page 4 of 6 - Plea Bargain Agreement
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5.
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/'V\/ That the Defendant pay •
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as directed.
6. Prosecute only on the lesser included offense of:
7. Take the following unadjudicated offense(s) into consideration pursuant to Texas Penal Code
and defendant judicially confesses to
§12.45:
each element 6fllle orrense.
That the Defendant participate in Community Service Hours.
8.
That the Defendant be confined days in County jail as a condition of community
9.
supervision.
10. That the Defendant's driver's license shall be suspend;.~, for a period of two (2) years, that the
· ·· · · ...; , ,.;., .. ntir" neriod of community
~~·~· ·~"~· :-;:..,.; +";., ·;:.,_· ant shall attend treatment as recommended by the Carnal County Adult
Community Supervision Department up to and including S.A.F.P.F.
11. XX: Other:
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12. Court Costs and a $15.00 crime stoppers fee, payable at sentencing.
The above terms co~~~i~~~t~ ~~r agreement, and there are no agreements not set forth above. The Defendant and
· '" · ,..., •" •~ "~· , olea baraain.
.~ .. A~C. OC i , . . . . . . A~O C
Furthermore, the Detenaant scaces, --, """' """""' ~·-~~
TO READ AND WRITE THE ENGLISH LANGUAGE AN INTERPRETER HAS ASSISTED ME IN READING THIS
ENTIRE DOCUMENT AND AIDED ME IN DISCUSSING SAME WITH MY ATTORNEY. I HAVE READ THIS ENTIRE
DOCUMENT AND DISCUSSED IT FULLY WITH MY ATTORNEY. I UNDERSTAND THIS DOCUMENT COMPLETELY
AND I AM AWARE OF THE CONSEQUENCES OF MY PLEA. MY ATTORNEY HAS DISCUSSED WITH ME THE LAW
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AND FACTS APPLICABLE TO THIS CASE, A N~ I AM SATISFIED THAT I HAVE BEEN EFFECTIVELY
COMPETENT· I UNDERSTAND THE ADMONISHMENTS IN
~A~A~RAPH 1.· I AM FREELY, VOLUNTARILY, KNOWINGLY, AND INTELLI :--,ENT MY t'Lt:A.,~',
~"'th , , 11\ oh, "'""'"' ..,,,...."" wh.cr.n the alleaed offense was committed is mentallv
competent, is represented by competent counsel, understands the nature of the charges against him/her and the
consequences of a plea of guilty or nolo contendere, including the minimum and maximum punishment provided by law;
(2) the attorney for the Defendant and the State consent and approve the waiver of trial by jury and agree to stipulate the
evidence in this case; and (3) the Defendant's plea of guilty, statements, waivers, stipulations, and judicial confession were
freely, voluntarily, knowingly and intelligently made.
_,_ ~ v;th ~II f;nrl;nM ~~~PI n"t "hnve.
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IT IS SO ORDERED on this the __L_ da~ ,:~ ~
JU"""""~ESyt'G'C_.//
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l1f\IV Defendant's Initials Page 6 of6- Plea Bargain Agreement
cAusE No. cP.~o 13- Lto 1
THE STATE OF TEXAS § IN THE DISTRICT COURT
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