ACCEPTED 04-16-00303-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/1/2016 6:27:12 PM KEITH HOTTLE CLERK
Cause No. 04-16-00303-CR STATE OF TEXAS § COURT OF APPEALS FILED IN 4th COURT OF APPEALS § SAN ANTONIO, TEXAS 06/01/16 6:27:12 PM VS. § FOURTH JUDICIAL DISTRICT KEITH E. HOTTLE Clerk § MOISES TRUJILLO § SAN ANTONIO, TEXAS
APPELLANT’S RESPONSE TO THE ORDER PROPOSING TO DISMISS FOR WANT OF RIGHT OF APPEAL
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, appellant, MOISES TRUJILLO, who, by and through the
undersigned counsel, and in reply to the order of this Honorable court of appeals
dated May 23, 2016, would show the Court the following:
I. Procedural history.
The State charged appellant by indictment on June 4, 2014 with: one [1]
count of indecency by exposure with a child younger than seventeen (17) years old
[Count III]; and two [2] counts of aggravated sexual assault of a child younger than
fourteen (14) years old [Counts I & II], each alleged to have occurred in Bexar
County, Texas, on or about March 30, 2007 or May 28, 2008. See (1 CR 5)
(containing State’s “True Bill of Indictment” in Cause No. 2014-CR-4416).1
1 Indecency by exposure with a child younger than seventeen (17) is a third degree felony. TEX. PENAL CODE §§ 21.11 (a)(2),(d) (West 2008). Penetrating or contacting the sexual organ of a child younger than fourteen (14) is a first degree felony. TEX. PENAL CODE § 22.021(a)(1)(B)(iii),(e) (West 2007). The parties entered into a written plea agreement under which appellant
applied for deferred adjudication or community supervision on March 14, 2016. (1
CR 21, 29). Pursuant to that agreement, appellant pled “guilty” to Counts I & III
of the indictment and the State dismissed Count II. See, e.g., (1 CR 25, 29)
(containing plea documents entitled: “Court’s Admonishment and Defendant’s
Waivers and Affidavit of Admonitions,” “Plea Bargain,” and “Waiver, Consent to
Stipulation of Testimony, and Stipulations”). The written agreement shows the
State would also recommend: (1) “punishment to be assessed at [a] CAP of 25
years [in TDCJ];” (2) a fifteen-hundred dollar [$1,500] fine; (3) “[an] affirmative
finding of…[a] 3G offense [that will render] Defendant not eligible for supervision
under CCP 42.12, Sec. 3;” and (4) “[the] State will make no recommendation [on]
Defendant’s deferred adjudication/community supervision application.” (1 CR 29)
(emphasis added).
In addition, a section of the plea bargain page nominated “Waiver of
Appeal” states, in relevant part, “as part of my plea bargain agreement in this case,
I knowingly and voluntarily waive my right to appeal…in exchange for the
prosecutor’s recommendation, provided that the punishment assessed by the court
does not exceed our agreement.” (1 CR 29). The plea agreement bears the
signatures of: (1) appellant; (2) his counsel, Robert F. Gebbia; and (3) Assistant
District Attorney, Marissa L. Giovenco. (1 CR 29, 68). The presiding Judge, the Hon. Kevin O’Connell, followed appellant’s plea
agreement on April 26, 2016, sentencing appellant to twenty-five [25] years in the
Texas Department of Criminal Justice Institutional Division, and a fifteen-hundred
dollar ($1,500) fine. See (1 CR 68-75) (containing “Judgment(s) of Conviction by
Court—Waiver of Jury Trial”). That same day, the trial court also certified that
“this criminal case is a plea-bargain case, and appellant has NO right of appeal.” (1
CR 67) (containing “Trial Court’s Certification of Defendant’s Right of Appeal”).
On May 13, 2016, three [3] distinct events occurred: (1) appellant filed
notice of appeal, [1 CR 76]; (2) Robert F. Gebbia successfully moved to withdraw
as counsel of record, [1 CR 78]; and (3) the trial court appointed the Bexar County
Public Defender’s office to represent appellant for purposes of this attempted
appeal. (1 CR 83). Later, on May 18, 2016, the released Gebbia filed a “Motion
For Reconsideration or Reduction of Sentence” in which he states, “Moises
Trujillo would like to request that the sentence be reduced to five (5) years or
probation be reconsidered.” (1 CR 84) (emphasis added). The trial court
summarily denied Gebbia’s motion on May 19, 2016.
II. No right of appeal.
Appellant pleaded guilty or nolo contendere to two [2] of the three [3] the
counts alleged against him pursuant to a written plea agreement with the State. (1
CR 26). As part of the plea agreement, appellant waived his right of appeal in writing. (1 CR 29). The trial court certified that: “this criminal case a plea-bargain
case, and the defendant has NO right of appeal.” (1 CR 67).
Rule 25.2(d) of the Texas Rules of Appellate Procedure provides, “The
appeal must be dismissed if a certification that shows the defendant has a right of
appeal has not been made part of the record under these rules.” TEX. R. APP. P.
25.2(d) (West 2015). The undersigned attorney has reviewed documents including
the electronic clerk’s record in this case and can find no right of appeal for
appellant. See TEX. R. APP. P. 25.2(a)(2) (providing that, in plea-bargained case
where the sentence did not exceed the agreed-upon punishment, defendant may
only appeal: [1] matters raised by written motion and ruled upon before trial; or [2]
after getting the trial court’s permission).
Notably, in an effort to secure the permission necessary to pursue this
appeal, appellate counsel did file and present Judge O’Connell with a “Motion to
Amend Trial Court’s Certification of Defendant’s Right to Appeal.” See Exhibit
A. Judge O’Connell denied that motion on May 24, 2016. See Exhibit B.
Accordingly, because the record contains no evidence of any legal rulings
secured pretrial, and the trial court has steadfastly denied permission to appeal, this
Court has little choice but to dismiss the appeal. See, e.g., Chavez v. State, 183
S.W.3d 675, 680 (Tex. Crim. App. 2006) (dismissing appeal with no inquiry into
even possibly meritorious claims when defendant had no right to appeal due to plea bargain); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (holding
valid waiver of appeal will prevent a defendant from appealing without the consent
of the trial court); Buck v. State, 45 S.W.3d 275, 277-78 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (ruling waiver of appeal made contemporaneously with plea
and before sentencing is binding).
III. Relief Available to Appellant.
Although the court of appeals is required to dismiss this appeal, appellant
may, after the mandate is issued in this case, file an application for a writ of habeas
corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure to
determine whether his retained attorney provided ineffective assistance of counsel.
Trial counsel’s performance from March 14, 2016 through May 18, 2016 arguably
indicates an objectively deficient belief that appellant was eligible for community
supervision from the trial court. See, e.g., (1 CR 21) (containing “Application for
Deferred Adjudication or Community Supervision (Non Jury),” file stamped same
day as appellant’s plea, March 14, 2016); (1 CR 84) (containing trial counsel
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ACCEPTED 04-16-00303-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/1/2016 6:27:12 PM KEITH HOTTLE CLERK
Cause No. 04-16-00303-CR STATE OF TEXAS § COURT OF APPEALS FILED IN 4th COURT OF APPEALS § SAN ANTONIO, TEXAS 06/01/16 6:27:12 PM VS. § FOURTH JUDICIAL DISTRICT KEITH E. HOTTLE Clerk § MOISES TRUJILLO § SAN ANTONIO, TEXAS
APPELLANT’S RESPONSE TO THE ORDER PROPOSING TO DISMISS FOR WANT OF RIGHT OF APPEAL
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, appellant, MOISES TRUJILLO, who, by and through the
undersigned counsel, and in reply to the order of this Honorable court of appeals
dated May 23, 2016, would show the Court the following:
I. Procedural history.
The State charged appellant by indictment on June 4, 2014 with: one [1]
count of indecency by exposure with a child younger than seventeen (17) years old
[Count III]; and two [2] counts of aggravated sexual assault of a child younger than
fourteen (14) years old [Counts I & II], each alleged to have occurred in Bexar
County, Texas, on or about March 30, 2007 or May 28, 2008. See (1 CR 5)
(containing State’s “True Bill of Indictment” in Cause No. 2014-CR-4416).1
1 Indecency by exposure with a child younger than seventeen (17) is a third degree felony. TEX. PENAL CODE §§ 21.11 (a)(2),(d) (West 2008). Penetrating or contacting the sexual organ of a child younger than fourteen (14) is a first degree felony. TEX. PENAL CODE § 22.021(a)(1)(B)(iii),(e) (West 2007). The parties entered into a written plea agreement under which appellant
applied for deferred adjudication or community supervision on March 14, 2016. (1
CR 21, 29). Pursuant to that agreement, appellant pled “guilty” to Counts I & III
of the indictment and the State dismissed Count II. See, e.g., (1 CR 25, 29)
(containing plea documents entitled: “Court’s Admonishment and Defendant’s
Waivers and Affidavit of Admonitions,” “Plea Bargain,” and “Waiver, Consent to
Stipulation of Testimony, and Stipulations”). The written agreement shows the
State would also recommend: (1) “punishment to be assessed at [a] CAP of 25
years [in TDCJ];” (2) a fifteen-hundred dollar [$1,500] fine; (3) “[an] affirmative
finding of…[a] 3G offense [that will render] Defendant not eligible for supervision
under CCP 42.12, Sec. 3;” and (4) “[the] State will make no recommendation [on]
Defendant’s deferred adjudication/community supervision application.” (1 CR 29)
(emphasis added).
In addition, a section of the plea bargain page nominated “Waiver of
Appeal” states, in relevant part, “as part of my plea bargain agreement in this case,
I knowingly and voluntarily waive my right to appeal…in exchange for the
prosecutor’s recommendation, provided that the punishment assessed by the court
does not exceed our agreement.” (1 CR 29). The plea agreement bears the
signatures of: (1) appellant; (2) his counsel, Robert F. Gebbia; and (3) Assistant
District Attorney, Marissa L. Giovenco. (1 CR 29, 68). The presiding Judge, the Hon. Kevin O’Connell, followed appellant’s plea
agreement on April 26, 2016, sentencing appellant to twenty-five [25] years in the
Texas Department of Criminal Justice Institutional Division, and a fifteen-hundred
dollar ($1,500) fine. See (1 CR 68-75) (containing “Judgment(s) of Conviction by
Court—Waiver of Jury Trial”). That same day, the trial court also certified that
“this criminal case is a plea-bargain case, and appellant has NO right of appeal.” (1
CR 67) (containing “Trial Court’s Certification of Defendant’s Right of Appeal”).
On May 13, 2016, three [3] distinct events occurred: (1) appellant filed
notice of appeal, [1 CR 76]; (2) Robert F. Gebbia successfully moved to withdraw
as counsel of record, [1 CR 78]; and (3) the trial court appointed the Bexar County
Public Defender’s office to represent appellant for purposes of this attempted
appeal. (1 CR 83). Later, on May 18, 2016, the released Gebbia filed a “Motion
For Reconsideration or Reduction of Sentence” in which he states, “Moises
Trujillo would like to request that the sentence be reduced to five (5) years or
probation be reconsidered.” (1 CR 84) (emphasis added). The trial court
summarily denied Gebbia’s motion on May 19, 2016.
II. No right of appeal.
Appellant pleaded guilty or nolo contendere to two [2] of the three [3] the
counts alleged against him pursuant to a written plea agreement with the State. (1
CR 26). As part of the plea agreement, appellant waived his right of appeal in writing. (1 CR 29). The trial court certified that: “this criminal case a plea-bargain
case, and the defendant has NO right of appeal.” (1 CR 67).
Rule 25.2(d) of the Texas Rules of Appellate Procedure provides, “The
appeal must be dismissed if a certification that shows the defendant has a right of
appeal has not been made part of the record under these rules.” TEX. R. APP. P.
25.2(d) (West 2015). The undersigned attorney has reviewed documents including
the electronic clerk’s record in this case and can find no right of appeal for
appellant. See TEX. R. APP. P. 25.2(a)(2) (providing that, in plea-bargained case
where the sentence did not exceed the agreed-upon punishment, defendant may
only appeal: [1] matters raised by written motion and ruled upon before trial; or [2]
after getting the trial court’s permission).
Notably, in an effort to secure the permission necessary to pursue this
appeal, appellate counsel did file and present Judge O’Connell with a “Motion to
Amend Trial Court’s Certification of Defendant’s Right to Appeal.” See Exhibit
A. Judge O’Connell denied that motion on May 24, 2016. See Exhibit B.
Accordingly, because the record contains no evidence of any legal rulings
secured pretrial, and the trial court has steadfastly denied permission to appeal, this
Court has little choice but to dismiss the appeal. See, e.g., Chavez v. State, 183
S.W.3d 675, 680 (Tex. Crim. App. 2006) (dismissing appeal with no inquiry into
even possibly meritorious claims when defendant had no right to appeal due to plea bargain); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (holding
valid waiver of appeal will prevent a defendant from appealing without the consent
of the trial court); Buck v. State, 45 S.W.3d 275, 277-78 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (ruling waiver of appeal made contemporaneously with plea
and before sentencing is binding).
III. Relief Available to Appellant.
Although the court of appeals is required to dismiss this appeal, appellant
may, after the mandate is issued in this case, file an application for a writ of habeas
corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure to
determine whether his retained attorney provided ineffective assistance of counsel.
Trial counsel’s performance from March 14, 2016 through May 18, 2016 arguably
indicates an objectively deficient belief that appellant was eligible for community
supervision from the trial court. See, e.g., (1 CR 21) (containing “Application for
Deferred Adjudication or Community Supervision (Non Jury),” file stamped same
day as appellant’s plea, March 14, 2016); (1 CR 84) (containing trial counsel
“Motion For Reconsideration or Reduction of Sentence,” stating, “Moises Trujillo
would like to request that the sentence be reduced to five (5) years or probation be
reconsidered”) (emphasis added). Appellant no doubt relied on trial counsel’s
representations when he applied for “probation,” which could only be granted by a
jury in this case, not the judge. See, e.g., State v. Dunbar, 297 S.W.3d 777 (Tex. Crim. App. 2009) (noting if defendant is found guilty of “3g” offense, probation
may be granted only by jury, not judge); TEX. CRIM. P. CODE, art. 42.12, § 3g
(West 2015).
WHEREFORE, appellant, by and through undersigned counsel, is
compelled to concede that this Honorable court of appeals must dismiss this direct
appeal for the reasons stated above.
Respectfully submitted, MICHAEL YOUNG Chief Public Defender
BY: /s/ Dean A. Diachin Dean A. Diachin BEXAR COUNTY ASST. PUBLIC DEFENDER Paul Elizondo Tower 101 W. Nueva St., Suite 370 San Antonio, Texas 78204 Phone: (210) 335-0701 Fax: (210) 335-0707 Dean.Diachin@bexar.org T.B.N.: 00796464
ATTORNEY FOR APPELLANT. CERTIFICATE OF SERVICE
I do hereby certify that the above and foregoing has been delivered to the
Bexar County District Attorney’s Office, San Antonio, Texas 78205 on this 1st
day of June 2016.
/s/ Dean A. Diachin DEAN A. DIACHIN Assistant Public Defender Appendix A Defendant’s Motion to Amend Trial Court’s Certification of Defendant’s Right ot Appeal
Cause No.: 2014-CR-4416; Filed: 05-24-16.