Michael Jude Pirie v. State

ACCEPTED 03-15-00212-CR 4832939 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 4:21:01 PM JEFFREY D. KYLE CLERK CASE NO. 03-15-00212-CR MICHAEL JUDE FJBJF. IN THE COURT OFFILED 3rd COURTAPPEALS IN OF APPEALS Appellant AUSTIN, TEXAS 4/9/2015 4:21:01 PM VS. THIRD SUPREME DISTRICT JEFFREY D. KYLE Clerk T H E S T A T E OF TEXAJS Appellee SITTING IN AUSTIN MOTION T O DISMISS FOR WANT O F JURISDICTION This motion is fik d by the State of Texas, Appellee, and in support would show as follows: I. BACKGROUND Appellant was Indicted for the offense of Evading Arrest or Detention with a Motor Vehicle. Appellant insisted on acting Pro Se. The trial court appointed standby counsel to assist Appelhnt. A jury was selected and evidence presented. After the jury returned a verdict o Guilty and before evidence was presented in the punishment phase. Appellant accep ed a plea bargain offer of 3 years incarceration. Appellant thereon waived his right to trial by jury in writing and signed a judicial confession. A true copy of the plea pae cet is attached hereto as Attachment I. Appellant also waived his right to appeal. The trial court filed the Trial Court Certification on Defendant's Right of Appeal certifying that the case was based on a plea bargain and Appellant has Page 1 of 3 no right to appeal. A true copy of the Trial Court's Certification on Defendant's Right of Appeal is attached he eto as Attachment 2. Appellant thereafter filed his Notice of Appeal Pro Se. Therefore this Court has no jurisdiction to consider the appeal initiated by Appellant. See Tex. R. App. P. 25.1(a)(2), (d). PRAYER WHEREFORE, the State prays the Court grant this motion and dismiss this cause for Want of Jurisciiction. Respectftjlly submitted, OFFICE OF DISTRICT ATTORNEY 3 3 ^ and 424* JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P. O. Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us Assistant District Attorney State Bar No. 03353500 ATTORNEY FOR APPELLEE Page 2 of 3 C ERTIFICATE OF COMPLIANCE This is to certify that the pertinent portion of this brief contains 217 words printed in Times New Roman 14 font according to the WordPerfect^^ X6 word count tool. CERTIFICATE OF SERVICE This is to certify tiiat a true copy of the above and foregoing instrument, together with this proof of servicb hereof, has been forwarded by standard mail on the 10th day of April 2015, to Michael Jude Pirie, hmiate #01982650, Reverend C.A. HoUiday Transfer Facility, 295 IF -45 North, Huntsville, TX 77320, Appellant Pro Se and to Mr. Nathan Kight, 1008 N. iVater, Burnet, TX 78611. GarfWr^unyarcC^ Assistant District Attorney Page 3 of 3 ATTACHMENT 1 i CAUSE NO. THE STATE OF TEXAS IN THE DISTRICT COURT OF V. BURNET COUNTY, TEXAS 424*'* JUDICIAL DISTRICT FELONY ADMONITIONS TO THE DEFENDANT 1. The range of punispment attached to this offense(s) as enhanced, if any, is (check one): Count (Capital Felony - death penalty waived) confinement in tfie Institutional Division of the Texas Department of Criminal Justice for life. Count .(Habitual Offender) confinement in the Institutional Division of the Texas Departmen of Criminal Justice for life or a term of not more than 99 years or less than 25 years. Count (First Degree Felony + Repeat Offender) confinement in the Institutional Division of the Texas Department of Criminal Justice for life or a term of not more than 99 years or less than 15 years; in addition, a fine not to exceed $10,000 may be imposed. Count ^(First Degree Felony) confinement in the Institutional Division of the Texas Department of Criminal Justice for life or a term of not more than 99 years or less than 5 year^; in addition, a fine not to exceed $ 10,000 may be imposed. Count (Second D DEF^DANT " / 2 CAUSE NO. THE STATE OF TEXAS IN THE DISTRICT COURT OF V, BURNET COUNTY, TEXAS 424*" JUDICIAL DISTRICT FELOm WAIVERS. CONFESSION, AND AGREEMENT I. McA,c/ , the Defendant herein, make the following waivers as to each count of the indiqtment or information not waived/abandoned by the State of Texas as indicated by his initials: 1. If the Grard Jury has not returned an indictment, I waive the right to be accused l)y indictment and 1 igree to proceed by way of information. 2. waive the right to service of a copy of the indictment or information and the time allowed by law to file motions and pleadings thereon and to prepare for trial. 3. I waive the right to a trial, including the right to a trial by jury during the guilt iimocence phase aijd a speedy trial, 4. waive the appearance of and confirontation and cross-examination of the State's witnesses, the pri\^ilege against self-incrimination (as to guilt and punishment), and the right against doubl 3 jeopardy. 5. I waive the reading of the indictment or information. 6. I waive anq abandon all motions, pleadings and objections made before the entry of my plea. 7. consent b an oral stipulation of the evidence and testimony and to the introduction of tesiimony by affidavits, written statements of the witnesses and any other documentary evidence. 8. pursuantItowaive my11.072 Article right toof file a post-conviction the Texas application Code of Criminal for writThis Procedure. of waiver habeas applies corpus to any claim I had cnowledge of or any claim that I could have discovered by the exercise of due diligence w th the assistance of my attorney. This waiver also applies to any facts, the legal significance of which I should have been able to comprehend and develop on the record had I ch!)sen to do so. 9. wai right to a motion for new trial. waive my 10. I waive any appeal that I could make or pursue in this cause. 3 A plea agreement exists in this cause as follows (and the State agrees to recommend): If community supervision (probation) in any form is recommended, I understand that the Court has the discretion to impose any reasonable condition of supervision, including confinement in various faciilities, treatment, and restitution without violating the plea agreement, if any, unless the plea agreement expressly limits or prohibits such a condition. If my attomey is appointed by the Court, I acknowledge that I have the ability to reimburse the county for court-appointed attomey fees assessed, either in fiill or by periodic partial paym«its, upon reluase on community supervision or upon releasefi-omincarceration. J, the Defendant herein, JUDICIALLY CONFESS to committing the olirenfie(s) of and exactly as charged in the indictment or information and to any lesser included offenses of the offense(s) charged in the indictment or information. I, , the Defendant herein, agree to plead GUILTY to the above specified offense($), TRUE to all enhancements and special issues, if any, as charged in the indictment or information. By my signature below, I judicially confess to the above ofrense(s). I, the Defendant herein, agree that I have the ability to pay all fines, fees, and stitution ^s^ as a condition of my probation. DI^FMSJD^'S AtrORNEY Sworn and subscribed to before me on the \ { ^ ^ day of J ^ b n W y _ , 24>/s' Clerk of the Court The State consents to and approves the foregoing. ATTORNEY FOR THE STATE The Court consents to approves the foregoing waivers and consent to stipulation and introduction of es^ JUDGE PRESIDING 5 ATTACHMENT 2 CAUSE NO. THE STATE OF TEXAS IN THE JUDICIAL 424TH VI DISTRICT COURT OF BURNET COUNTY, TEXAS TRIAL COURT'fil CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL I, Judge of tlie trial court, certify this criminal case: Is not a plea-bargain case, and the defendant has therightto appeal, [or ] Is a plea-bargain cas,, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has therightof appeal, [or] Is a plea-bargain casit, but the trial court has given permission to appeal and the defendant has therightof appeal. [( ] i3r ^ ^ ^ x Is a plea-bargain case , and the defendant has NO right of appeal, [or] ^ ^ / ^ e defendant has wj lived the right of appeal. The defendant in this styled and numbered case, after consulting with his attorney, waives his right to file a post-conviction applicatio; 1 for writ of habeas corpus pursuant to Article 11.07 and Article 11.072 of the Texas Code of Criminal Procedure. Thi^ waiver will apply to any claim the Defendant had knowledge of or any claim the defendant could have iveredby exercising due diligence with the assistance of counsel The waiver also applies to any facts i have been able to comprehend the legal significance of and develop on the record had he chosi Date Signed I have received a copy of this certification. I have also been informed of myrightsconcerning any appeal of this criminal case, including any right to file pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have be an admonished that my attomey must mail a copy of the court of appeals judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionaiy review in the Court of Crir linal Appeals. TEX. R. APP. P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it s my duty to inform my appellate attomey, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that, because of appellate deadlines, if I fiail tc timely inform my appellate attomey of any change in my address, I may lose the opportunity tq^le pro se petitio|n |of discretionary t^r^. ^ Defeindant's Coun^el^ Mailing address State Bar of Texas ID Number Telephone number & Fax number Mailing Address Telephone number & Fax number '"A defendant in a criminal case has the right of appet 1 under these rules. The trial court shall enter a certificate of the defendant's right to appeal in every case in which it enters a jud^oent of guilt or other ap( lealalrie 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 written m<itioa filed and ruled on before trial, or (B) after getting the trial court's permission to appeal." TEXAS RULE OF APPELLATE PROCEDURE as.2(A)(a) Texas Rule of Apellate Procedure 25.2 (h)Effective 9j 2 0 0 9 & TRAP 25.2(a)(a) Revised 9/30/2011