PD-0587-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/13/2015 2:35:27 PM
November 16, 2015 Accepted 11/16/2015 3:35:37 PM
No. PD-0587-15 ABEL ACOSTA
CLERK
In the
Court of Criminal Appeals of Texas
At Austin
No. 01-14-00501-CR
In the Court of Appeals for the
First District of Texas
At Houston
ANDREW OLEVIA JONES
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S BRIEF ON APPELLANT’S
PETITION FOR DISCRETIONAY REVIEW
DEVON ANDERSON
District Attorney
Harris County, Texas
ALAN CURRY
State Bar No: 05263700
Assistant District Attorney
Harris County, Texas
JIM O’DONNELL
DAVID OVERHULS
Assistant District Attorneys
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
curry_alan@dao.hctx.net
STATEMENT REGARDING ORAL ARGUMENT
This Court has not granted oral argument in this case, and oral argument is not
necessary.
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IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Complainant, victim, or aggrieved party:
Gabriel Jones
Counsel for the State:
Devon Anderson District Attorney of Harris County
Alan Curry Assistant District Attorney on appeal
David Newell Assistant District Attorney on appeal
Jim O’Donnell Assistant District Attorney at trial
David Overhuls Assistant District Attorney at trial
1201 Franklin, Suite 600
Houston, Texas 77002
Appellant or criminal defendant:
Andrew Olevia Jones
ii
Counsel for Appellant:
Melissa Martin Counsel on appeal
1201 Franklin, 13th Floor
Houston, Texas 77002
Thomas Lewis Counsel at trial
1602 Washington
Houston, Texas 77007
Trial Judge:
Hon. Brock Thomas Presiding Judge
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TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ......................................................i
IDENTIFICATION OF THE PARTIES ..........................................................................ii
INDEX OF AUTHORITIES .............................................................................................. v
STATEMENT OF THE CASE .......................................................................................... 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ...................... 2
STATEMENT OF FACTS .................................................................................................. 2
SUMMARY OF THE ARGUMENT ................................................................................. 2
REPLY TO SOLE ISSUE FOR REVIEW ....................................................................... 3
CONCLUSION ..................................................................................................................... 6
CERTIFICATE OF COMPLIANCE ................................................................................ 7
CERTIFICATE OF SERVICE ........................................................................................... 8
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INDEX OF AUTHORITIES
CASES
Ex parte Broadway,
301 S.W.3d 694 (Tex. Crim. App. 2009) ..................................................................... 3, 5
Ex parte Delaney,
207 S.W.3d 794 (Tex. Crim. App. 2006) ......................................................................... 3
STATUTES
TEX. PENAL CODE ANN. §12.42(b) (2015) .......................................................................... 4
RULES
TEX. R. APP. P. 25.2(d) ........................................................................................................... 5
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 70.2................................................................................................................ 2
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TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
The appellant was charged with the felony offense of assault of a family
member with a prior conviction for aggravated assault of a family member and, in two
enhancement paragraphs, was alleged to have previously committed the offenses of
aggravated robbery and possession of a controlled substance (C.R. 24). The appellant
entered a plea of guilty to the offense and a plea of true to the allegations in the first
enhancement paragraphs, with the State agreeing to abandon the second enhancement
paragraph (C.R. 53-54; R.R. 2-5; R.R. 3-7-8). After the trial court found the appellant
guilty of the charged offense, he made a finding of true as to the allegations in the
remaining enhancement paragraph and assessed the appellant’s punishment at
confinement for 15 years in prison (C.R. 91; R.R. 3-39-40). A written notice of appeal
was timely filed (C.R. 94).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
In an unpublished opinion, delivered April 14, 2015, the First Court of Appeals
dismissed the appellant’s appeal. This Court granted the appellant’s petition for
discretionary review on August 26, 2015, and the appellant’s brief in support of his
petition for discretionary review was filed on October 9, 2015. The State now files its
brief on the appellant’s petition for discretionary review in accordance with TEX. R.
APP. P. 70.2.
STATEMENT OF FACTS
The State challenges all factual assertions in the appellant’s brief and presents
its account of the facts within its reply to the appellant’s sole issue for review.
SUMMARY OF THE ARGUMENT
Under the unique facts of this particular case, it is not clear that any error was
preserved because (1) defense counsel was able to ask the question that he desired of
all prospective jurors, (2) no further objections were made to defense counsel’s
questioning along those lines, (3) the prospective juror who was being questioned and
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who answered adversely to the appellant was challenged for cause by agreement, and
(4) defense counsel had no objection to the jury that was ultimately selected.
REPLY TO SOLE ISSUE FOR REVIEW
Under his sole issue for review, the appellant claims, “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[,
301 S.W.3d 694 (Tex. Crim. App. 2009),] rather than its holding in Ex parte Delaney,
207 S.W.3d 794 (Tex. Crim. App. 2006).”
The appellant was initially charged with committing the felony offense of
assault of a family member with a prior conviction for aggravated assault of a family
member (C.R. 24). In two enhancement paragraphs, the appellant was also initially
alleged to have previously committed the offenses of aggravated robbery and
possession of a controlled substance (C.R. 24). At the time that the appellant entered
a plea of guilty and a plea of true to the first enhancement paragraph, the State agreed
to abandon the second enhancement paragraph (C.R. 53-54, 61; R.R. 2-5; R.R. 3-7-8).
By abandoning this latter enhancement allegation, the State reduced the appellant’s
punishment range to that of a first-degree felony, specifically removing the twenty-
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five year minimum sentence from the trial court’s consideration. TEX. PENAL CODE
ANN. §12.42(b) (2015).
In the appellant’s plea paperwork, he signed a waiver of his right to appeal.
(C.R. 54, 59). At the hearing on the appellant’s plea of guilty, the trial court only
referred to the appellant’s prior conviction for aggravated robbery, and the appellant
pleaded true to that first enhancement paragraph (R.R. II-5). At a subsequent hearing
on the presentence investigation report, the trial court acknowledged the two
enhancement allegations and also that the State had abandoned the second
enhancement allegation that the appellant had previously been convicted of
possession a controlled substance (R.R. III-6).
The appellant’s written admonishments reflected that the punishment range in
this case was that of a second degree felony enhanced by one prior conviction. (C.R.
55). At the presentence investigation hearing, the trial court clarified that the
applicable punishment range was from five to ninety-nine years or life in prison (R.R.
III-7). The trial court sentenced the appellant to fifteen years in prison, a sentence
that he could not have received without the State agreeing to abandon one of the
enhancement paragraphs (C.R. 91). See TEX. PENAL CODE ANN. §12.42(b) (2015).
The trial court’s certification of the appellant’s right to appeal reflects that the
appellant has waived his right to appeal (C.R. 60).
This Court has made it clear that a pre-sentence waiver of the right to appeal is
valid when there is a benefit conferred on the defendant by the State. Ex parte
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Broadway, 301 S.W.3d 694, 697-98 (Tex. Crim. App. 2009) (pre-sentence waiver of
right to appeal was valid based upon consideration of State’s consent to waiver of jury
trial). In this case, the appellant clearly benefitted from the State’s abandonment of
one of the enhancement paragraphs at the time of his plea of guilty regardless of
whether he received a sentence recommendation. Id. (observing there was
consideration for the defendant’s pre-trial waiver, even though there was no plea
bargain). Consequently, the appellant has validly waived his right to appeal, and the
court of appeals properly dismissed the appeal in accordance with that waiver and the
trial court’s certification that the appellant had waived his right to appeal. TEX. R.
APP. P. 25.2(d). The appellant’s sole issue for review should be overruled.
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CONCLUSION
It is respectfully submitted that all things are regular, that the judgment of the
First Court of Appeals should be affirmed, and that the appeal should be dismissed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Alan Curry
ALAN CURRY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 05263700
curry_alan@dao.hctx.net
6
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 952 words, based upon the representation provided by the word
processing program that was used to create the document.
/s/ Alan Curry
ALAN CURRY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 05263700
curry_alan@dao.hctx.net
7
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been mailed to the
appellant’s attorney at the following address on November 13, 2015:
Melissa Martin
Attorney at Law
1201 Franklin, 13th Floor
Houston, Texas 77002
/s/ Alan Curry
ALAN CURRY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 05263700
curry_alan@dao.hctx.net
Date: November 13, 2015
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