PD-1327-15 PD-1327-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/8/2015 10:45:42 AM Accepted 10/8/2015 4:53:24 PM ABEL ACOSTA NO._________________ CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ANTHONY JERMAINE MALLARD Petitioner
v.
THE STATE OF TEXAS Respondent
Petition is in Cause No. 43518-A from the 188th Criminal District Court of Gregg County, Texas, and Cause No. 12-15-00012-CR in the Court of Appeals for the Twelfth District of Texas
PETITION FOR DISCRETIONARY REVIEW
A. Clay Graham TBN: 24064140 Law Offices of A. Clay Graham The Texas Building 855 Texas St. Ste 120 Fort Worth, TX 76102 817-334-0081 (phone) 817-887-1474 (fax) October 8, 2015 Email:aclaygrahamattorney@gmail.com Attorney for Petitioner Anthony Jermaine Mallard IDENTITY OF PARTIES AND COUNSEL
The following is a list of all parties to the trial court’s final judgment, and the names and addresses of all trial and appellate counsel.
Trial Court Judge: Hon. David Brabham, Judge 188th Criminal Court, Gregg County
Petitioner: Anthony Jermaine Mallard
Petitioner’s Trial Counsel: R. Daryll Bennett TBN: 02150700 Attorney at Law P.O. Box 2645 322 West Whaley Longview, Texas 75606
Petitioner’s Counsel on A. Clay Graham Motion for New Trial TBN: 24064140 and Appeal: Attorney at Law 5719 Airport Freeway Fort Worth, TX 76117
Appellee: The State of Texas
Appellee’s Trial Counsel: Tanya Reed TBN: 24039204 V. Christopher Botto TBN: 24064926 District Attorney’s Office 110 E. Methvin Longview, Texas 75601
Appellee’s Counsel Zan Colson Brown on Appeal: TBN: 03205900 District Attorney’s Office 110 E. Methvin Longview, Texas 75601
ii TABLE OF CONTENTS page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The Court of Appeals erred when it held that Petitioner had waived his rights to appeal the denial of his motion for new trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
C. Application of Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . 4
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
iii INDEX OF AUTHORITIES
Cases page
Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 7
Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 5, 6
Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . 11
Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . 5, 7
Mallard v. State, 12-15-00012-CR, 2015 WL 4116749 (Tex. App.– Tyler, July 8, 2015, no. pet. h.) (mem. op., not designated for publication). . . . 2, 4
Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . 5
Randle v. State, 847 S.W.2d 576 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . 11, 11
Ex parte Reedy, 282 S.W.3d 492 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . 9, 10
Ex parte Thomas, 545 S.W.2d 469 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . 9
Ex parte Townsend, 538 S.W.2d 419 (Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . . . . 9
Washington v. State, 363 S.W.3d 589 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . 7, 9
iv Statutes
T EX. C RIM. P ROC. C ODE A NN. art. 1.14 (West 2006). . . . . . . . . . . . . . . . . 5
T EX. C RIM. P ROC. C ODE A NN. art. 44.02 (West 2006). . . . . . . . . . . . . . . . 5
Court Rules
T EX. R. A PP. P. 9.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
T EX. R. A PP. P. 25.2(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
T EX. R. C IV. P. 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
v STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
On February 27, 2014, Anthony Jermaine Mallard (“Mr. Mallard”
or “Petitioner”) was indicted for sexual assault of a child alleged to
have occurred on December 29, 2013. [C.R. 4]. Mr. Mallard pled not
guilty and a bench trial on the merits was held on December 11, 2014,
in the 188th Criminal District Court of Gregg County, Texas before the
Honorable David Brabham. [III R.R. passim]. The trial court found Mr.
Mallard guilty as charged. [III R.R. 121]. On December 18, 2014, a
hearing on punishment was held before the court, whereupon Mr.
Mallard was sentenced to five (5) years incarceration in the Texas
Department of Criminal Justice. [IV R.R. 64]. A timely notice of appeal
was filed on January 16, 2015. (CR 32). A timely motion for new trial
was filed on January 20, 2015. [C.R. 33]. A hearing on the motion was
held in the trial court on February 16, 2015. [V R.R. passim]. At the
conclusion of the hearing the trial court denied the motion for new trial.
[V R.R. 69].
1 STATEMENT OF PROCEDURAL HISTORY
The opinion of the Twelfth Court of Appeals dismissing Mr.
Mallard’s appeal was handed down on July 8, 2015. See Mallard v. State,
12-15-00012-CR, 2015 WL 4116749 (Tex. App.–Tyler, July 8, 2015, no.
pet. h.) (mem. op., not designated for publication). Mr. Mallard filed a
timely motion for rehearing contesting the dismissal, which was
overruled on September 15, 2015.
GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. The Court of Appeals erred when it held that Petitioner had waived his rights to appeal the denial of his motion for new trial.
REASONS FOR REVIEW
1. The Twelfth Court of Appeals has decided an important
question of state or federal law in a way that conflicts with the
applicable decisions of the Court of Criminal Appeals or the
Supreme Court of the United States.
2 ARGUMENT
GROUND FOR REVIEW ONE (Restated)
I. The Court of Appeals erred when it held that Petitioner had waived his rights to appeal the denial of his motion for new trial.
A. Facts
After a bench trial conviction, Mr. Mallard was sentenced to five
(5) years incarceration, for the second degree felony offense of sexual
assault of a child. [C.R. 23]. During the course of the punishment
hearing held before the court on December 18, 2014, Mr. Mallard orally
entered a non-negotiated waiver of his right to appeal. That waiver was
based on the advice of counsel and occurred after Mr. Mallard had been
sentenced by the trial court. [IV R.R. 65]. The Trial Court’s Certification
of Defendant’s Right of Appeal entered by the trial court on December
18, 2014, states that “the defendant has waived the right of appeal.”
[C.R. 28].
Having retained new counsel, Mr. Mallard filed a timely motion
for new trial, in which he complained that his trial counsel had
rendered ineffective assistance of counsel.1 [C.R. 33]. On February
1 Note that the 30th day, January17, 2015, was a Saturday, and January19, 2015, was a legal holiday, thereby causing Tuesday, January 20, 2015, to be
3 16,2015, a hearing was held on the motion for new trial. [V R.R.
passim]. After noting that Mr. Mallard had waived his right to appeal
at the punishment hearing, the trial court specifically allowed Mr.
Mallard to proceed on his motion to “develop a record” because “an
appellate court will have to deal with all these issues.” [V R.R. 10]. The
trial court denied the motion for new trial on substantive grounds,
holding that the evidence did not establish ineffective assistance of
counsel. [V R.R. 69].
B. The Opinion Below
Based entirely on the trial court’s certification of defendant’s
right of appeal, which shows that the defendant had waived his right
of appeal, [C.R. 28], the court of appeal dismissed Mr. Mallard’s appeal.
See Mallard, 2015 WL 4116749 at *1. (citing T EX. R. A PP. P. 43.2(f)).
C. Application of Controlling Law
A criminal defendant in Texas has a statutory right to appeal his
the deadline for filing this Motion for New Trial. TEX. R. CIV . P. 5. Though there was some confusion regarding the application of the mailbox rule to criminal cases, the trial court ultimately agreed that the rule did apply in criminal cases. [V R.R. 63]. The uncontroverted representation by counsel that the motion for new trial was deposited with the United States Postal Service on the timely date of January20, 2015 (V R.R. 8), when combined with the fact that the motion was date stamped and filed by the district clerk on January22, 2015–which was within 10 days of the due date–is sufficient to demonstrate the timeliness of the filing. See TEX. R. APP. P. 9.2.
4 or her conviction. T EX. C RIM. P ROC. C ODE A NN. art. 44.02 (West 2006);
see also Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009).
A defendant may, however, waive this right, if the waiver is executed
voluntarily, knowingly, and intelligently. Broadway, 301 S.W.3d at 697
(citing T EX. C RIM. P ROC. C ODE A NN. art. 1.14 (West 2006); Monreal v.
State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003)). If some consideration
is given by the State in exchange for such a waiver of appeal, that
waiver will be upheld. Broadway, 301 S.W.3d at 697–98 (consideration
in form of State’s consent to defendant’s waiver of jury trial).
This Court has explained the reviewing court should examine the
circumstances surrounding the waiver. For example, in Ex parte
Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006), this Court held
that a pretrial or presentencing waiver of the right to appeal in a
non-plea-bargain case was invalid and could not be voluntarily,
knowingly, and intelligently made when the consequences of the
waiver were unknown to the defendant. The emphasis in Delaney was
the absence of a bargained-for waiver in exchange for an agreed-upon
sentence. Broadway, 301 S.W.3d at 697 n.7.
In Broadway, defendant filed an application for writs of habeas
5 corpus alleging ineffective assistance of counsel on the grounds that his
trial counsel failed to inform him of his right to appeal his sentence and
that they allowed him to sign a waiver of appeal before sentencing. Id.
at 696. At trial Broadway entered an open plea after declining the
State’s plea-bargain offer, which offered a minimum 25–year sentence.
Id. Broadway declined the State’s offer and entered the open plea,
hoping that the judge would consider deferred adjudication
community supervision with drug treatment. Id. In order to be able to
seek deferred adjudication, Broadway waived his right to have the jury
assess punishment, and Broadway convinced the State to consent to the
waiver of the jury trial in exchange for Broadway’s waiver of his right
to appeal. Accordingly, this Court concluded that Broadway
voluntarily, knowingly, and intelligently waived his right to appeal
even though it was an open plea and there was no agreement on
punishment, because there was consideration given by the State for the
waiver. Id. at 699.
Subsequently, in Washington v. State, this Court applied the
Delaney rationale to invalidate a waiver where the defendant waived
his right to appeal before sentencing and without an agreement as to
6 punishment, and where the record did not confirm that the State gave any
consideration for the waiver. 363 S.W.3d 589, 589–90 (Tex. Crim. App.
2012) (emphasis added) (citing Delaney, 207 S.W.3d at 799); cf. Blanco v.
State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000) (waiver of appeal
enforceable when executed after conviction, but before sentencing, in
exchange for a recommended sentence).
Here, the record surrounding Mr. Mallard’s appellate waiver
shows the following transpired:
THE COURT: Mr. Mallard, having found you guilty of this offense, the Court is called upon to impose the punishment. . . . .I’m going to assess your sentence at five years confinement in the Institutional Division of the Texas Department of Criminal Justice. I’m going to give you credit for the time you served in the county jail. You do have a right to appeal this case. If you wish to appeal we need to talk about that. You have 30 days to make that decision. Mr. Bennett, do you want to visit with him on his appellate rights at this time or do you want to do that before the 30 days?
MR. BENNETT: I can do it right now, Judge, if you want me to.
THE COURT: All right. Let’s take a brief recess. Thank you.
(Recess)
7 THE COURT: All right. Mr. Bennett, we’re back on the record. What says Mr. Mallard on the issue of whether he wishes to appeal or not?
MR. BENNETT: Judge, he does not wish to appeal. I explained to him that, you know, if he appealed and it got reversed he would still have to come back. It doesn’t mean he’s a free man. I had a call last night from somebody that just got out of prison Monday, and he thought it was over with. No, it was reversed for a new trial, you're facing 2 to 20. And that's his situation. I explained that to him, and he agrees that he does not want to appeal since it’s a five-year sentence.
THE COURT: Mr. Mallard, I understand you wish to accept your five-year sentence and give up your right of appeal?
THE DEFENDANT: Uh-huh, yes.
THE COURT: You need to answer out loud, sir.
THE DEFENDANT: Yes, sir.
THE COURT: You understand once you waive your right to appeal you can’t come back and appeal the case; do you understand that?
THE COURT: You need to -- sir, I’ve got to hear you.
THE COURT: All right. If you and Mr. Bennett will sign a written waiver at the clerk’s bench, I’ll approve it. If there’s nothing further, we need to get
8 some paperwork done.
[IV R.R. 64-66].
Noticeably absent from the proceeding is any consideration by
the State in return for Mr. Mallard’s gratuitous waiver of his right to
appeal. Washington, 363 S.W.3d at 589–90. Further, Mr. Mallard’s
“decision” to gratuitously waive his right to appeal was directly
influenced by the advice of his defense counsel–the same person whom
Mr. Mallard accused of ineffective assistance in his motion for new
trial.
Secondly, this Court has held that a defendant may waive his
right to appeal, but that his waiver will be knowingly and intelligently
made only under circumstances in which, and to the extent that, he is
aware of what has occurred in the trial proceedings. Restated, if a
defendant enters a waiver of his right to appeal before he is aware of
the consequences of his plea, the waiver is invalid. See Ex parte Thomas,
545 S.W.2d 469, 470 (Tex. Crim. App. 1977); Ex parte Townsend, 538
S.W.2d 419, 420 (Tex. Crim. App. 1976). Only then is he in a position to
know the nature of the claims he could have brought on appeal but for
his waiver. Ex parte Reedy, 282 S.W.3d 492, 498 (Tex. Crim. App. 2009).
9 Here, at the time that Mr. Mallard entered his gratuitous, non-
bargained-for appeal waiver, there is no way he could have known that
his trial counsel arguably rendered ineffective assistance of counsel;
that he would ultimately need to file a motion for new trial to create a
record of that ineffectiveness; or, that the trial court would deny his
motion for new trial. Id.
At the time that Mr. Mallard entered his gratuitous appellate
waiver, he was manifestly not aware of the facts and the law applicable
to the performance of his trial counsel. Cognizant of the fact that
criminal defendants may not understand until well after the fact that
their trial lawyer has provided ineffective assistance, this Court has
held in a related context that
[w]e do not require any defendant to risk alienating his trial lawyer by requiring the defendant to claim ineffective assistance of counsel at the time of trial. Further, because many errors by defense counsel are of a technical nature, the defendant may not even know errors by their trial lawyer are occurring, and cannot possibly object. Many times it is in the review of the record by the appellate attorney that errors of an ineffective assistance of counsel nature are discovered. The timely filed appeal to the court of appeals by appellant is a proper procedure for seeking relief.
Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993).
Such is the case here. Mr. Mallard waived his right to appeal
10 based solely on advice from his trial counsel–against whom he later
made an ineffective assistance of counsel claim in his motion for new
trial. At the time that he entered his non-bargained, gratuitous
appellate waiver, Mr. Mallard had no way of knowing that the
performance of his trial attorney was arguably substandard, and that
he would need to appeal. Id.
Finally, in the opinion dismissing Mr. Mallard’s appeal, the court
of appeals cited to Rule 25.2(a)(2) of the Texas Rules of Appellate
Procedure. However, that Rule does not squarely apply in this
situation. The rule refers only to plea bargains with regard to guilty
pleas, not gratuitously-entered, non-bargained for waivers of appeal.
See T EX. R. A PP. P. 25.2(a)(2). Regardless of whether a court feels that a
defendant should be “bound” by a gratuitously-entered, non-bargained
for waiver of appeal, the plain language of Rule 25.2(a)(2) does not
contemplate that situation. In this case, Mr. Mallard was found guilty
by the trial court, and there was no bargain regarding punishment.
Nothing in Rule 25.2(a)(2) limits his right to appeal. See Dears v. State,
154 S.W.3d 610, 613 (Tex. Crim. App. 2005).
Because the State gave no consideration for Mr. Mallard’s waiver
of appeal; he entered it without being aware of the consequences of his
11 action; and, Rule 25.2 does not limit Mr. Mallard’s right to appeal, this
Court should allow Mr. Mallard his right to appeal.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner
respectfully prays that this Court grant discretionary review and allow
each party to fully brief and argue the issues before the Court of
Criminal Appeals, and that upon reviewing the judgment entered
below, that this Court reverse the opinion of the Twelfth Court of
Appeals and reverse the conviction entered below.
Respectfully submitted,
/s/ A. Clay Graham A. Clay Graham TBN: 24064140 Law Offices of A. Clay Graham The Texas Building 855 Texas St. Ste 120 Fort Worth, TX 76102 817-334-0081 (phone) 817-887-1474 (fax) Email:aclaygrahamattorney@gmail.com Attorney for Petitioner Anthony Jermaine Mallard
12 CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 2,276.
/s/ A. Clay Graham A. Clay Graham
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the State’s Prosecuting Attorney and the Gregg County District Attorney by a manner compliant with the Texas Rules of Appellate Procedure, on this 7th day of October , 2015.
13 APPENDIX
1. Opinion of the Twelfth Court of Appeals.
14 NO. 12-15-00012-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ANTHONY JERMAINE MALLARD, § APPEAL FROM THE 188TH APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS, APPELLEE § GREGG COUNTY, TEXAS
MEMORANDUM OPINION PER CURIAM Appellant was convicted of sexual assault of a child and sentenced to imprisonment for five years. On January 16, 2015, he filed a notice of appeal. We have received the appellate record. The clerk’s record includes the trial court’s certification that “the defendant has waived the right of appeal.” See TEX. R. APP. P. 25.2(a)(2). The reporter’s record shows that, after sentence was imposed, Appellant waived his right to appeal in open court. On June 18, 2015, we notified Appellant that the trial court’s certification stated he had waived the right to appeal. Additionally, we warned that the appeal would be dismissed unless, on or before June 29, 2015, a trial court certification showing Appellant’s right to appeal was filed in this court. No response has been filed. Because the trial court’s certification affirmatively shows that Appellant has waived the right to appeal, and the record supports the trial court’s certification, we dismiss the appeal. See TEX. R. APP. P. 43.2(f). Opinion delivered July 8, 2015. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH) COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 8, 2015
NO. 12-15-00012-CR
ANTHONY JERMAINE MALLARD, Appellant V. THE STATE OF TEXAS, Appellee
Appeal from the 188th District Court of Gregg County, Texas (Tr.Ct.No. 43518-A)
THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this court that this appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this court that this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.