PD-0587-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/19/2015 10:28:12 AM Accepted 6/19/2015 2:44:01 PM PD-0587-15 ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
__________________________________________________________________
ANDREW OLEVIA JONES
Appellant,
vs.
THE STATE OF TEXAS
Appellee ________________________________________________________________
Petition for Discretionary Review from the First Court of Appeals No. 01-14-00501-CR, affirming the conviction of Cause No. 1390646 338th District Court of Harris County, Texas Honorable Brock Thomas, Judge Presiding
__________________________________________________________________
ALEXANDER BUNIN Chief Public Defender, Harris County, Texas ________________________ MELISSA MARTIN Assistant Public Defender Harris County, Texas TBN. 24002532 June 19, 2015 1310 Prairie, Suite 980 Houston, TX 77002 Phone: (713)274-6709 Fax: (713)437-4319 melissa.martin@pdo.hctx.net
Attorney for Appellant IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Andrew Olevia Jones TDCJ# 01930243 Eastham Unit, TDCJ 2665 Prison Road #1 Lovelady, TX 75851
TRIAL PROSECUTOR: Jim O’Donnell Assistant District Attorney Harris County Texas 1201 Franklin St, 6th Floor Houston, TX 77002
DEFENSE COUNSEL AT TRIAL: Thomas Joseph Lewis Attorney at Law 1602 Washington Ave Houston, TX 77007
COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin Assistant Public Defender Harris County TX 1201 Franklin St, 13th Floor Houston, TX 77002 melissa.martin@pdo.hctx.net
PRESIDING JUDGE: Hon. Brock Thomas 338th District Court Harris County, TX 1201 Franklin St, 15th Floor Houston, TX 77002
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
TABLE OF CONTENTS .............................................................................................................iii
INDEX OF AUTHORITIES ....................................................................................................... iv
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY .............................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1
GROUND FOR REVIEW ........................................................................................................... 1 THE COURT OF APPEALS ERRED IN DISMISSING MR. JONES’S APPEAL BECAUSE, AS ARGUED IN HIS BRIEF ON APPEAL, THE TRIAL COURT’S CERTIFICATION OF RIGHT TO APPEAL WAS DEFECTIVE IN STATING THAT HE HAD WAIVED HIS RIGHT TO APPEAL. MR. JONES BELIEVES THE COURT OF APPEALS INCORRECTLY APPLIED THIS COURT’S DECISION IN EX PARTE BROADWAY, 301 S.W.3D 694 (TEX. CRIM. APP. 2009) AND FAILED TO FOLLOW EX PARTE DELANEY, 207 S.W.3D 794 (TEX. CRIM. APP. 2006), WHICH MORE APTLY FITS THE CIRCUMSTANCES OF MR. JONES’S PLEA.
ARGUMENT
A. PERTINENT RECORD DOCUMENTS ........................................................................... 2
B. THE COURT OF APPEALS’ RATIONALE FOR DISMISSAL .......................................... 3
C. APPELLANT’S RESPONSE ............................................................................................ 4
PRAYER .................................................................................................................................... 6
CERTIFICATE OF SERVICE ...................................................................................................... 7
CERTIFICATE OF COMPLIANCE ............................................................................................. 8
APPENDIX
iii INDEX OF AUTHORITIES
Cases
Ex Parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009)............................ 2, 4, 5, 6
Ex Parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006) .............................. 2, 4, 5, 6
Jones v. State, 01-14-00501-CR, 2015 WL 1734910, at *2 (Tex. App.—Houston [1st Dist.] Apr. 14, 2015, no. pet. h.) ...............................................................................1
Jones v. State, 01-14-00510-CR, 2015 WL 505179, at *1 (Tex. App.—Houston [1st Dist.] Feb. 5 2015, no pet.) .................................................................................................. 4
iv Statement of the Case
On March 19, 2014, appellant Andrew Olevia Jones entered a guilty plea without
an agreed recommendation from the state (C.R. at 53). After a hearing on a
Presentence Investigation Report on May 14, 2015, the trial court sentenced him to 15
years in the Institutional Division of the Texas Department of Criminal Justice (C.R. at
(C.R. at 91). He timely filed a notice of appeal on June 4, 2014 (C.R. at 94).
Statement of Procedural History
Appellant’s brief was filed on November 18, 2014 and the state responded with
a motion to dismiss the appeal on the basis that appellant had waived his right to appeal.
The First Court of Appeals agreed with the state and dismissed the appeal in a
memorandum opinion issued April 14, 2015. Jones v. State, No. 01-14-00501-CR, 2015
WL 1734910 (Tex. App.—Houston [1st Dist.], not designated for publication). A
motion to extend time to file a Petition for Discretionary Review until June 15, 2015
was granted by this Court on May 15, 2015 and this Petition is being filed within 15
days of that date and is therefore timely filed.
Statement Regarding Oral Argument
Appellant waives oral argument.
Ground for Review
The court of appeals erred in dismissing Mr. Jones’s appeal because, as argued in
his brief on appeal, the Trial Court’s Certification of Right to Appeal was defective in
stating that he had waived his right to appeal. Mr. Jones believes the court of appeals 1 incorrectly applied this Court’s decision in Ex Parte Broadway, 301 S.W.3d 694 (Tex.
Crim. App. 2009) and failed to follow Ex Parte Delaney, 207 S.W.3d 794 (Tex. Crim.
App. 2006), which more aptly fits the circumstances of Mr. Jones’s plea.
A. Pertinent Record Documents
Mr. Jones pleaded guilty to an aggravated assault of a family member, with a prior
conviction for aggravated assault of a family member, a second-degree felony and one
prior felony enhancement for aggravated robbery. His punishment range, therefore,
was five years to 99 years, or life in prison (C.R. at 53).
Mr. Jones signed the standard plea of guilty form, entitled “Waiver of
Constitutional Rights, Agreement to Stipulate, and Judicial Confession,” on which a
second felony enhancement paragraph was crossed out (C.R. at 54, copy of plea papers
attached as Appendix). The last paragraph of the second page of that form states:
I intend to enter a plea of guilty and the prosecutor will recommend that my punishment should be set at_____________________________ _____________________________________________________ WOAR (handwritten) ____________________________________________________ and I agree to the recommendation. I waive any further time to prepare for trial to which I or my attorney may be entitled. Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor.
(C.R. at 54).
In addition, Mr. Jones initialed and signed the standard “Plea Admonishments”
form, which includes the following paragraph: 2 3. PERMISSION TO APPEAL: If the punishment assessed by the Court does not exceed the punishment recommended by the prosecuting attorney and agreed to by you and your attorney, the Court must give its permission to you before you can appeal any matter in the case, except for matters that were raised by written motion filed prior to trial.
(C.R. 57-58).
Mr. Jones and his attorney signed the Trial Court’s Certification of Defendant’s
Right to Appeal, which indicates “the defendant has waived the right to appeal.” (C.R.
at 60).
Following the Certification in the Clerk’s Record is a document with no title that
records the case number, the defendant’s name, “Plea information” (C.R. at 61), and
the prosecutor’s name. On the lines following “Plea information” is handwritten
“Abandon one e (circled) ¶, plead to PSI WOAR.”
B. The Court of Appeals’ Rationale for Dismissal
The Court of Appeals bases its decision to dismiss the appeal on the boilerplate
language at the bottom of the standard plea form: “Further, I waive any right of appeal
which I may have should the court accept the foregoing plea bargain agreement
between myself and the prosecutor” and the document indicating that the state
abandoned one of the enhancement paragraphs and the plea would be without an
agreed recommendation.
The document provides that the plea was entered without an agreed recommendation as to punishment and strikes the second enhancement paragraph regarding Jones's prior felony conviction for possession of a controlled substance. The plea paperwork also includes another document
3 from the State memorializing its agreement to drop the enhancement in exchange for Jones's plea without an agreed recommendation Jones v. State, 01-14-00501-CR, 2015 WL 1734910, at *2 (Tex. App.—Houston [1st Dist.]
Apr. 14, 2015, no. pet. h.)
Further the court relies on Broadway for the proposition that “A defendant may
knowingly and intelligently waive his appeal as part of a plea, even when sentencing is
not agreed upon, where consideration is given by the State for that waiver.” Broadway,
301 S.W.3d at 699. And the court cites its own, unpublished opinion, another Jones v.
State, to state: “(When a defendant waives his right of appeal in exchange for
consideration from the State, his waiver is made knowingly, intelligently, and voluntarily
and he may not appeal any matters unless the trial court first grants permission.)” Jones
v. State, 01-14-00510-CR, 2015 WL 505179, at *1 (Tex. App.—Houston [1st Dist.] Feb.
5 2015, no pet.)
C. Appellant’s Response
In Broadway, this Court distinguished the circumstances of the plea in that case
from those in Delaney.
In Ex parte Delaney, 207 S.W.3d 794, 795–96 (Tex.Crim.App.2006), the defendant chose a similar procedural strategy; he pled guilty without an agreed recommended sentence, waived his right to appeal, and waived his right to a jury trial.6 The issue considered by this Court was whether the waiver of the right to appeal was made voluntarily, knowingly, and intelligently given the following circumstances: (1) the defendant signed the waiver before final adjudication and sentencing; (2) the waiver was not bargained for; and, (3) punishment was uncertain when the waiver was signed, but the range of punishment for the offense was known. Id. at 796. We held that a pre-trial or pre-sentencing waiver of the right to appeal is 4 not voluntary, knowing, and intelligent when the consequences of the waiver are not known with certainty. Id. at 799.
Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009).
In Broadway, the defendant had rejected a plea bargain and pursued going to the
judge without an agreed recommendation in hopes of being granted deferred
adjudication. The trial court had made findings of facts and conclusions of law after a
writ hearing, in which he found that the state had been unwilling to allow the defendant
to waive a jury trial. This Court held that there had been a bargain because the defendant
“induced” the state to permit him to waive a jury trial in exchange for his waiver of
appeal. Id at 697-98.
In contrasting its decision in Broadway to that in Delaney, the Court stated:
In Delaney, we concluded that the defendant's waiver of appeal was not made voluntarily, knowingly, and intelligently because the consequences of the waiver were not “known with certainty.” Delaney, 207 S.W.3d at 799. Though it was not a plea-bargain case, our opinion endorsed a plea agreement that identified the actual punishment or maximum punishment; but, we stated, “simply knowing the range of punishment for the offense is not enough to make the consequences of a waiver known with certainty, because it still does not allay the concern that unanticipated errors may occur at the punishment phase of trial.” Id.
Broadway, 301 S.W.3d at 698.
There is nothing in the documents described above, or anywhere else in the
record, that Mr. Jones induced the state to abandon one of the enhancements against
its by agreeing to waive his appeal so he could attempt to obtain deferred adjudication.
5 There is no mention in any document, nor in the reporter’s record, that he refused a
plea bargain until the state agreed to let him waive his jury trial.
The document following the plea containing “Plea information” is just that—
information—it memorializes no bargained-for agreement.
Just as in Delaney, appellant signed the guilty plea including the “waiver” prior to
sentencing, the waiver was not bargained for, and punishment was uncertain when it
was signed. In this case, it was even more uncertain than in Delaney because at the plea,
the trial court misstated the range of punishment as from two to 20 years (2 R.R. at 5).
Further, the trial court stated: “This case is a plea without an agreed recommendation.
That means it is what it says, that there is not an agreement between you and the State
as to what the resolution of this case should be. Do you understand that?” (2 R.R. at 7-
8).
Broadway does not stand for the proposition that any time the state permits the
defendant to make an open plea there is consideration. If it did, this Court would have
overruled Delaney but instead, it very specifically distinguished the two cases.
Prayer
Mr. Jones respectfully asks this Court to grant review, order briefing on the
merits, and issue an opinion as to whether the court of appeals misapplied this court’s
opinion in Broadway and erred in dismissing his appeal.
6 Respectfully Submitted,
ALEXANDER BUNIN Harris County Public Defender
/s/ Melissa Martin ______________________________ MELISSA MARTIN Assistant Public Defender 1201 Franklin, 13th Floor Houston, TX 77002 Phone 713-274-6709 Fax 713-437-4319 Texas Bar No. 24002532 melissa.martin@pdo.hctx.net
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Petition for Discretionary Review was e-
served to Alan Curry, Assistant District Attorney, Harris County Texas and to the State
Prosecuting Attorney.
/s/Melissa Martin _______________________________ MELISSA MARTIN
7 CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i). 1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief contains 1,552 words printed in a proportionally spaced typeface. 2. This brief is printed in a proportionally spaced, serif typeface using Garamond 14 point font in text and Garamond 12 point font in footnotes produced by Microsoft Word software. 3. Upon request, undersigned counsel will provide an electronic version of this brief and/or a copy of the word printout to the Court. 4. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against the person who signed it.
/s/ Melissa Martin ____________________________ MELISSA MARTIN
8
NCIC COOE: 1399 03 RELATED CASES: FELONY CHARGE: Assault of Family Member Second Offender and Jmped~ng Bre~~bingAssault of Family Member Second Offender .
CAUSE NO·:· 1390646 BAlL: $NO BOND
HARRIS COUNTY DISTRICT COURT NO: 338 PRIOR CAUSE NO:'
FIRST SETtING D.ATE:
WAIVER OF CONSTITUTIONAL .RIGHTS, AGREEMENT TO STIPULATE, AND JUDiCIAL CONFESSION
In open court cm9 prio.r~6~n~eIing my"plea, fwaive the right of trial by jury. [also waive the appearance, confrontation, and cross-examination of witnesses, and my right against seif-ln~tion. The charges against me allege that in Harris County, Texas, ANDREW OLEVIA JONES, hereafter styled the Defendant, heretofore' on or about MAY 27, 2013, did then and there unlawf\dly, intentionally and knowingly cause bodily injury to GABRIEL JONES~ hereafter styled the Complainant; a member of the Defendant's family, by impeding the nonnal breathipg or circulation ofth~ b~ood of the Complilinahtby applying pr~ssur~ to the Complainant's neck.
It is turtberpresented that, before thecorninission aHeged above, the Defendam, oij JANUARY i 7,2008, in the 232ND DISTRICT COURT 0 HARRlS. COlinty, Te~; in Cause Number 1130503, was convict~d of AGGRAVATED ASSAULT OF A FAMILY MEMBER, which was committe.dagainst a.memberofthe Defendant's family:.
Befotethe commi_ssion.ofthe off~nse·.~)leged above, (hereafter' styled the primary offense), on OCTOBER 29, 1992, in 'Cause Number 646478, in the 174THDISTlUCT COURT ofHARRI~ County, Texas, the Defendant was ~onviCted of the felony of AGGRAVATED ROBBERY.
of
AGAINST THE PEACE.AND DIGNITY OF THE STAt~•. /
RECORDER'S MEMORANDUM This instrument is of poo~ality at the time of imagittg'" ~,
" 1 understand the above allegations and' I ,confess .that ~ey are true ~d that ~e acts alleged above were committed 9fl , ___ _ '.. :l~i~y z..?£, 2Of'2---~- - ,-- -.. - , In open court I consent ~o ,the "pral; and: written stipulation of evidence in th is case and to the introduction of affidavits, written statemen of witnesses, and other documentary evidence. I am s..ijt.isfjed that the a~orney representing me today in court has properly represented me and I have fi!lly ~iscu~,s,eo ~is case with him.
I intend to enter ,a plea of g~iltyand the'prosec~tor-wHI teco~end that my pUIjishment shou1d be set at ~---'-_ _ _ _ _--::-:-...,...,,-:-:~-:-:--~
and I agree to that rec,o,mmendation. I waive any further time to prepare for trial to which I or my attorney,may be entitled. Further, 1 waive any right of ~ppeal which I 'may have" should:th~ court accept the foregoing plea bargain agr~ement between myself and the prosecutor .
.-4ti~&d4fw DEFENDANT , ... "
Sworn to and S~bscribed before me on_.---,-_~-.....J_\_lil--l/~(X~O_I_i. .·. . ;..,____
.. ~ DEFENDANT'S ATIORNEY (PRINn SIGNATURE OF DEFENDANT'S ATIORNEY
I cO!lsent to ~nd approve, the: above, waiver of trial by jury~d stip~lation of ~vidence
This document was executed by the defe,ndant; his attorney, and the attorney representing the State, and then filed with the papers of the ase. The defendant then cam-e, before m.e,and l,ijpptoved the above and the defendant entered a plea of gujlty. After I admonished the defendant 0 the consequences of his piea, I asce$,iPed th_at'l1e entered it knowingly and voluntarily after discussing the case with his attorney. It appears tha the defendant is tiJ.e:ntllly competent: ,and the plea i.s free and voluntary. I find that the defendant's attorney is competent and has effecti ely represented the defendant in: this case. 'I infonned the defendaI1t that I would 110t exceed th~ agreed recommendation as to punishment.
~C:!'iL ~ b OI8t'~~7j:l 771JJe: NAN 19 201+ By' ~.".,.c,.: ' O""t"" . . Oeillity ,r...... , , PLEJ\ OF GUILTY 54 I ~ ~ "\
~~ J
CAUSE NU~/[BER } ~qa Coy,~
THE STATE OF'TEXAS IN THE 338 th DISTRICT COURT
v. OF
~tX-.,L.,) ~.) HARRIS COUNTY, TEXAS
PLEA Ai>~IONtSH~IENTS
Pursuant to Article 26,] 3 of the T~xas Coqe of Criminal Procedure, the Court hereby admonishes in writing the Defendant in the above-captioned cause of action as follows and instructs the Detendant to place his initials by each of the following admonitions to indicate that he fully understands each ~nftion.
~. You are ~harged wi th the felony criminal otfense of . A~:):.w \t f6.....,,; Lr fk hl.e::
:r;"'f¥€b# ~lbl~ 2. The State moves to reduce such charge to the felony I misdemeanor offense of _ _ __
If convicted of this offense. you face the following range of punishment:
FIRST DEGREE F ONY: a tenn of life or any tcnn of not more than 99 years or less than 5 years in the Institutional Oi . ion of the T. s Department of Criminal Justice and. in addition. a possible tine not to exceed $10. O.
~nhanced with one prior felony convi\:tion): a tenn of life or any term uf nOI more than 99 y rs or tess than 15 years in the fnstitutional Division of the T t!xas or Department Criminal Just' e and, in dition. a possible tine not to exceed S 10.000.
SECOND DEGREE fELONY: J tt:nn of not more than 20 y~ars or kss than 2 years in the Tnstitutional Division of [he Texas Department of Criminal Justice and. in addition .. a possible tine not [0 I;!xceed 510.000. . . SE€ONO DEGREE FELONY (enhanced with one prior felony conviction): a tenn of life or any [~nn of not more than 99 years or less than 5 years in th~ Institutional Division of the Texas Department uf Criminal Justice and. in addition~ a possible tine not to exceed S10.000.
rHIRD DEGREE FELO\IVtenn of not more than 10 \'ears or less than 2 "ears in the Institutional Division of the Texas ~ment of Criminal Justice and. in Jddition. a possible rine not to ~x\:e~d S10.000.
" "-\ -~
___ HABITUAL FELONY OFFENDER: atenn of life or any term of not' more th years or less ars in the Institutional Division of the Texas Department of Criminallusti .
DEGREE FELONY (enhanced with one prior felony convict" n): a term of not more than 20 years or ess than 2 years in the Institutional Division of the Te. Department of Criminal Justice and, in addit' n, a possible fine not to exceed $10,000.
STATE JAIL F ONY: a tenn of no~ more than 2 years or Ie than 6 months in a State Jail and, in addition, a possible tine t to exceed $10,000.
HABITUAL STATE J L FELONY: any tenn of t more than 20 / 10 years or less than 2 years in the Institutional Divisio of the Texas Depart nt of Criminal Justice and, in addition, a possi ble tine not to exceed $10,000.
STATE JAIL FELONY WITH A WEAPON OR A PRIOR CONVICTION FOR A 30 OFFENSE UNDER ART. 42'.1-2,:COD IMINAL PROCEDURE: a term of not more than 10 years or less than 2 years in the [nstitutional . ision of the Texas Department of Criminal Justice and, in addition, a possible tine not to ~xceed $10 ' 00.
PENAL CODE SECTION 12.44 (a): a felony conviction punished as a misdemean by a term of n more than one year in a county jail and a possi ble tine not to exceed $4,000.
__ SENTENCED L CODE SECTION 12.44 (b): a ,nisdemeanor conviction pun' hed by a tenn of not more than one ear in a county jail and a possible tine not to ~xceed $4,000. .
_~ E~tEANOR: a misdemeanor conviction punishe by a term of not more than llne year in a count Jail and a possible tine not to exceed 54,000.
yns DE~tEANOR: a misdemeanor conviction punished by a tenn of not more than
1SO Jays ye in a county jail and a possible tine not to exceed S2.000.
THER: the range of punishment is by continement in the Institutional Division Depart nt of Criminal Justice / county jail (circle one) for any tenn of not more than years and not less than years: in addition there is a possible / mandatory (circle une) not to exceed S- - - - - -
~)J 2. PLEA BARGAINS: If no plea bargain agreement exists. -the recommendation of the prosecuting attorney is not binding on the Court. If a plea bargain agreement does exist. the Court will intorrn \'OU whether or not it will follow (hat plt!a bargain Jgreeinent berore making any tinding on your plea. Should the Court reject the plea bargain agreement. you \\"ill be permitted to withdraw your plea. if you so desire.
ii 3. PER~IlSSION TO APPEAL: [f the punishment assessed by the Court Joes not exceed the puni!ihment recommended by the prosecuting attorney and agreed to by you and your attorney. the Court
{ I ~'
, must give its permission to you before you can appeal any matter in the case, except for matters that \vere raised by written motion filed prior to trial.
U 4. CITIZENSHIP: Ifyou are not a citizen of the United States of America, a plea of either Guilty or Nolo Contendre (no contest) for this offense may result in your deportation, or your exclusion from admission to the country, or the denial of your naturalization under applicable federal law.
~ 5. DEFERRED ADJUDICATION: If the Court defers adjudicating your guilt and places you on community supervision, upon any violation of any imposed condition of your community supervision, you may be arrested and detained as provided by law. You will then be entitled to a hearing limited to the detennination by th~ Court of whether or not to proceed with the adjudication of your guilt on the original charge. No appeal may be taken from this determination. After an adj udication of guilt, all proceedings, including the assessment of your punishment and your right to appeal, continue as if adjudication of guilt had not been deferred.
~ 6. WAIVER OF PRE·SENTENCE REPORT: As the Defendant accused of a felony crir:ninal offense in the above-captioned cause of action I have consulted with my attorney, \vhose name is signed below, regarding the application of Article 42.12( 9)(a) of the Texas Code of Criminal Procedure to my case which provides that, prior to imposition of sentence by the Court, {he Court shall direct a community supervision onicer to report to the Court in writing on the circumstances of the offense with which I am charged. including my criminal history, if any, and my social history. [understand that the: Court is not required to order such a report if the only available punishment is imprisonment, unless I request that such a report be made. I hereby do knowingly and voluntarily waive my right to the preparation of a report by a community supervision ofticer and expressly request that such a report not be prepared, except as may otherwise be required by law.
~ 7. DRIVER'S' LICENSE:'Your driver's license may be suspended as a result of the disposition uf this case. fn certain circumstances. you may be eligible to receive a restricted driver's license during the period of suspension at the discretion of the Court.
US. Comes no\v the defendant. joined by my attorney, and hereby states that the foregoing ;\dm~nishments. Statements, and \Vaivers. as well as the attached written \Vaiver of Constitutional Rights. Agreement to Stipulate 'and Judicial Confession. were read by me or read to me and \vere ~xplained to me in the language that 1 read. write. or understand by my attorney. and / o'r an intc!rpreter. namely ,. before I signed [hem. I funher state that l fuJIy understand (he foregoing Adl!1onishments. Statements. and \Vaivers. as well as [he attached written \Vaiver of Constitutional Rignts, Agreement to Stipulate and Judicial C;onfession. and that I am aware of an'd fully understand the consequences of my plea. [\vaive the right to have a court reporter record my plea of Guilty or ~olo Contendre (no contest) or True. I further state that I am mentally competent. chat I fully understand the nature uf the l:harges against me. Jnd that my plea is freely~ knowingly, Jnd \'oiunrarily ~n[ered. If my Juomey was appointed by the Court, I hereby give up and waive any right I may have to wait to prepare tor trial. I state that I am totaJly satistied with the representation given to Ine by my attorney. and that in my opinion he or she proviqed fully dTective and competent representation. I \vaive and give up under Article l,l~ of the Texas Code of Criminal Proc~dure any and Jll ri ghts given [0 me by law whether of form. substance. or procedure. Joined by my attorney. I waive :.lnd give up my ri ght to a jury trial in this ~ase as well as my ri ght to require the appearance,
57 confrontation and cross-examination of witnesses. I \vaive and give up any right of contidentiality that I may have as to the pre-sentence report tiled in this case and agree that' the report may be publicly filed. I consent to the oral and written stipulations of evidence in this case.
« 9 . JmCIAL CONFESSION: I hereby state [hat I have read or have been read the indictment or ~~n filed in this case, and I confess and admit that I committed each and every allegation con tained therein. I state that. I am guilty of the offenses alleged, as well as any and all lesser included offense. I hereby swear to all the foregoing, and I further sweat that all testimony that I give in this case wi 11 be the truth, the whole truth, and nothing but the truth, so help me God.
~~~ Defendant
S WORN TO AND SUBSCRIBED BEFORE ME ON THIS DATE: -\~ - ~~
Deputy Dist-rict Cierk Harris County, Texas
We join and approve the waiver of jury trial pursuant to Article 1.13 of the Texas Code of Criminal Procedure and the stipulations of evidence pursuant to Article 1.15 of the Texas Code of Criminal Procedure. In addition, the Court hereby Hnds as a fact that the Defendant herein is fully mentally competent. and that his or h~r plea is freely, knowingly and voluntarily entered.
i\ttorney for Defend~t Alto'mey for Defendant . l
( signature) (printed name
STATE OF TEXAS
v. _auseNo. (31ot~-I § § § • IN THE 335 DISTRICT COURT
§ § OF IlARRIs COUNTY, TEXAS Defendant
ADVICE OF DEFENDANT'S RIGHT TO APPEAL
The Court, pursuant to Tex. R. App. P. 25.2, advises the Defendant as follows: 1. Texas law gives a defendant convicted of a crime the right to appeal his conviction. 2. If you pleaded guilty or no contest and accepted the punishment recommended by the prosecutor, however, you cannot appeal your conviction unless the Court gives you permission! If you waived or gave up your right to appeal, you canDot appeal your conviction. 3. If you did not plead guilty, you may have the right to appeal. If you want to appeal, you must give notice of appeal in writing to this Court's clerk within 30 days. 4. If an attorney represents you in the court of appeals, your attorney must mail a copy of the court of appeals' judgment and opinion to your last known address. You must tell your attorney in writing of any change in your address. 5. If you are not satisfied with your appeal's result, you can ask the Court of Criminal Appeals to review your case by filing a petition for discretionary review in the Court of Criminal Appeals within 30 days of the issuance of the opinion by the court ,of appeals. If you fail to inform your attorney of any change in your address, you may lose the opportunity to seek discretionary revIew.
The Defendant declares the foDowing to the Court (choose one): ~) I. 'i-I read and write English. I have read and I understand this docume~(Defendant initial here if true); or
2. 0 I speak English. _ _ _---:--:-_ _ _ _ _ _ _ _ (name reader) read this document to me. I understand its contents. (befendant initial here if true); or
3. _ _ _ _ _---,-_ _ _ _ _ (name translator) translated this document for me. ~_ _ _(Defendant initial here if true).
Harris County, Texas
Revis~I2/12 e· • Cause No. 131064 -6 •
THE STATE OF TEXAS IN THE '"3 -;8 DISTRICT COURT
v. C9UN'fl Cf
TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF ApPEAL*
I, judge of the trial court, certify this criminal case: o is not a plea-bargain case, and the defendant has the right of appeal. [or] o is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial, and not withdrawn or waived, and the defendant has the right of appeal. [or] o is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [or] is a plea-bargain case, defendant has NO right of appeal. [or] the defen t
31 Judge It.",. -Cot,. . "'lr. r. I have receive y of this ·fication. I have also been informed of my rights con"· ~"'ap this criminal case, any right to file a pro se petition for discretionary review pursuan to Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court 0 appeals's judgment and opinion to my last known address and that I have only 30 days in which to file a pro s petition for discretionary review in the Court of Criminal Appeals. TEX. R. APP. P. 68.2 I acknowledge that, if wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I a , of appellate deadlines, if I fail to timely inform my appellate attorney of an ch e in my address, I may lose the ortunity to file a pro se petition for discretionary review.
Defendant's Counsel
State Bar of Texas ill number:
Telephone number: ______________________ Mailing Address:
Fax number (if any): Telephone number: '1 l j f -2. S, - &'7'1c, Fax number (if any): 1,',) I ~~J - ')<7~! • "A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant's right to appeal in every case in which it enters a judgment of guilt or other appealable 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 a written motion filed and ruled on before trial, or (B) after getting the tria] court's pennission to appeal." TEXAS RULES OF APPELLATE PROCEDURE 25.2(a)(2). 60 ,.
Case # i 3i otCf-6 ----------------------------
Defendant Name Ank.;? ~< ... , _. ._... -- ..-. . .... .... -'- .- . - - - -~ -_.__ .- ...--.
Prea information Ak",,~ ~ @ '11:;>, pU k f~ tJ?AI2
O. A. Name 1lU-' JJ...1~
RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imaging
61 Jones v. State, Not Reported in S.W.3d (2015)
trial court assessed punishment at fifteen years' imprisonment and certified that Jones waived his right to appeal. 20 15 WL 1734910
Only the Westlaw citation is currently available.
See TEX. PENAL CODE ANN . § 22.01(b·l) (West SEE TX R RAP RULE 47.2 FOR 2011). DESIGNATION AND SIGNING OF OPINIONS.
2 See TEX. PENAL CODE ANN . § 12.32(a) (West Supp. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B). 2014) (punishment range for first-degree felony is five Court of Appeals of Texas, years to life imprisonment); TEX. PENAL CODE ANN . Houston (1st Dist. l2.42(b) (West Supp. 2014) (with an exception not applicable to this case, second-degree felony is enhanced Andrew Olevia Jones, Appellant to first-degree felony if defendant has previously been
v. finally convicted of a felony other than a state jail felony), TEX. PENAL CODE ANN. l2.42(d) (with The State of Texas, Appellee exceptions not applicable to this case, punishment range for felony offense with two prior final felony convictions NO. 01-14-00501-CR is twenty-five years to life imprisonment). Opinion issued April 14, 2015 Jones subsequently filed a notice of appeal and argues, On Appeal from the 338th District Court, Harris County, among other things, that he did not waive his right to Texas, Trial Court Case No. 1390646 appeal because his plea was entered without an agreed recommendation as to punishment. In response, the State has Attorneys and Law Firms filed a motion to dismiss the appeal arguing that Jones waived his right to appeal because the State provided consideration Melissa Martin, for Andrew Olevia Jones. for the waiver by abandoning an enhancement to lower the Devon Anderson, Alan Curry, David C. Newell, for the State applicable punishment range . Because we find that the trial of Texas. court's certification that Jones waived his right to appeal is supported by the record, we grant the State's motion and Panel consists of Justices Keyes, Bland, and Massengale. dismiss this appeal.
MEMORANDUM OPINION Analysis
PER CURIAM An appeal must be dismissed if a certification showing that the defendant has the right of appeal has not been made *1 Appellant, Andrew Olevia Jones, was charged with the part of the record. See TEX. R. APP. P. 25.2(d); Dears v. offense of assault of a family member after having been State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The previously convicted of an assault against a family member, trial court's certification, which was signed by Jones, states a second-degree felony. I The indictment included two that Jones waived his right of appeal. See TEX. R. APP. P. enhancement paragraphs alleging that Jones had two prior 25.2(a). A valid waiver of appeal prevents a defendant from felony convictions, one for aggravated robbery and another appealing without the trial court's consent. See Monreal v. for possession of a controlled substance. Jones pleaded State, 99 S. W.3d 615, 622 (Tex. Crim. App. 2003). We review guilty without an agreed recommendation as to punishment, the record to detennine whether the record supports the trial but with an agreement that the State would abandon court's certification. See Dears, 154 S.W.3d at 615 (providing the enhancement regarding his prior felony conviction for that an appellate court may review the record to detennine possession of a controlled substance. Abandoning the second whether an appellant has the right to appeal). enhancement reduced the punishment range considered by the trial court from that of a habitual felony offender *2 Our review of the record indicates that, on March with two prior felony convictions (twenty-five years to life 19, 2014, the State agreed to abandon the enhancement imprisonment) to that of a first-degree felony (five years to dealing with Jones's prior conviction for possession of a life imprisonment). 2 In accordance with this agreement, the controlled substance, and Jones entered a plea of guilty
hJpstlawNe:ct It) 2015 1 homson Reuters. No claim to ong in al U.S. Government Works . Jones v. State, Not Reported in S.W.3d (2015)
waives his right of appeal in exchange for consideration without a recommendation as to punishment. As part of the from the State, his waiver is made knowingly, intelligently, plea paperwork, Jones signed a document styled "Waiver of and voluntarily, and he may not appeal any matters unless Constitutional Rights, Agreement to Stipulate, and Judicial the trial court first grants permission. ") (citation omitted). Confession," which states: "Further, I waive any right of Here, the State provided consideration for Jones's waiver appeal which I may have should the court accept the foregoing by abandoning the second enhancement allegation, thereby plea bargain agreement between myself and the prosecutor." reducing Jones's punishment range to that of a first-degree The document provides that the plea was entered without felony and removing the twenty-five year minimum sentence an agreed recommendation as to punishment and strikes the from the trial court's consideration. second enhancement paragraph regarding Jones's prior felony conviction for possession of a controlled substance. The plea paperwork also includes another document from the State memorializing its agreement to drop the enhancement in Conclusion exchange for Jones's plea without an agreed recommendation. We find that the record shows that Jones waived his right to A defendant may knowingly and intelligently waive his appeal as consideration, along with his plea, for the State's appeal as a part of a plea, even when sentencing is not abandoning the second enhancement. Because the trial court's agreed upon, where consideration is given by the State for certification that Jones waived his right to appeal is supported that waiver. See Ex parte Bl'Oadway, 301 S.W.3d 694, 699 by the record and the trial court has not given its permission (Tex. Crim. App. 2009) (holding that "a defendant may to appeal, Jones has no right of appeal and we must dismiss knowingly and intelligently waive his entire appeal as a part this appeal. See Menelee v. State, 287 S. W.3d 9, 12 n.12 (Tex. of a plea, even when sentencing is not agreed upon, where Cnm. App. 2009); Dears, 154 S.W.3d at 613. Accordingly, consideration is given by the State for that waiver."); Jones we grant the State's motion to dismiss the appeal for want of v. State, No. 01-14-00510-CR, 2015 WL 505179, at *1 jurisdiction. We dismiss any other pending motions as moot. (Tex.App.-Houston [1st Dist.] Feb. 5,2015, no pet.) (mem. op., not designated for pUblication) ("When a defendant -.... __._------_ __ _._-_ _ __...._. .... .. .. .._----_.._ ---- - - . - - - - -
End of Document @ 2015 Th omson Reu ters . No claim to original U,S Government Works.
Jf'StlCi\vNe:d @ 2015 Thomson Reuters . No claim to original U.S, Government Works. 2