Nayajah Niya Davis v. State

Opinion

ACCEPTED 14-15-00344-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 12/7/2015 11:15:32 AM CHRISTOPHER PRINE CLERK

Nos. 14-15-00344-CR & 14-15-00345-CR In the FILED IN Court of Appeals 14th COURT OF APPEALS HOUSTON, TEXAS For the 12/7/2015 11:15:32 AM Fourteenth District of Texas CHRISTOPHER A. PRINE At Houston Clerk

♦ Nos. 1412474 & 1412475 In the 262nd District Court Of Harris County, Texas ♦ Nayajah Niya Davis Appellant v. The State of Texas Appellee ♦ State’s Motion to Dismiss Based on Waiver of Right of Appeal ♦

The record in this case shows that the appellant knowingly waived

her right of appeal after the trial on guilt was concluded. She developed

no post-trial record that would support a finding that this waiver was

not knowing, voluntary, and intelligent. Accordingly, this Court should

dismiss these appeals.

1 Statement of the Case

The appellant was charged with two counts of assault of a public

servant. (1 CR 19; 2 CR 19).1 She entered a plea of not guilty, but a jury

found her guilty as charged for both offenses. (1 CR 224, 226; 2 CR 196,

199). After the guilty verdict, the appellant entered into an agreement

with the State regarding punishment. (13 RR 4-5). In accord with that

agreement the trial court assessed punishment at concurrent sentences

5 years’ confinement, but suspended the sentences and ordered the

appellant to serve 5 years’ community supervision. (1 CR 226, 228-31; 2

CR 199, 201-204). As part of the agreement, the appellant waived her

right of appeal. (13 RR 8-10, 18, 21; 1 CR 212).

The appellant’s waiver of her right of appeal is binding.

The record in this case is very explicit that the appellant waived

her right to appeal after the trial on guilt had concluded. (13 RR 8-10,

18, 21). The Court of Criminal Appeals has held that where a defendant,

after having been found guilty, waives her right of appeal as part of an

agreement with the State regarding punishment, that waiver is binding.

1The State will refer to the two clerk’s records in these cases as though they were sequential volumes. Thus the record for cause 141212474 will be 1 CR, and the record for 1412475 will be 2 CR. 2 See Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (declining

to allow defendant to “renege” on agreement).

There might be circumstances where the interests of justice would

weigh against enforcing such a waiver, but this case involves none of

those. The only matters the appellant raises on appeal relate to matters

of which she was aware prior to waiving her right of appeal. At one point

she references a motion for new trial, but there is no motion for new

trial in either clerk’s record, and the appellant’s brief does not reference

any new evidence adduced as a result of any motion for new trial.

“[An] appeal must be dismissed if a certification that shows the

defendant has the right of appeal has not been made part of the

record .…” TEX. R. APP. P. 25.2(d). There is no such certification in this

case; one record contains a certification that the appellant waived her

right of appeal, and the other record contains no certification at all,

though it is apparent that the appellant’s waiver would apply to both

causes. (1 CR 212 (certification that appellant has waived her right of

appeal); 13 RR 18 (trial court admonishing appellant that “You've given

up any right that you have to appeal either one of these convictions; you

got that?”; defendant responding: “Yes.”)).

3 Prayer

The State asks this Court to dismiss this appeal because the

appellant bargained away her right of appeal in return for the State

agreeing to her receiving community supervision instead of time in the

penitentiary. This Court should dismiss this appeal to enforce that

bargain.

Respectfully submitted,

/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 morgan_clinton@dao.hctx.net TBC No. 24071454

4 Certificate of Service

I certify that I have requested that efile.txcourts.gov electronically

serve a copy of this motion to:

J. Paxton Adams huntsvilleatty@att.net

/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 morgan_clinton@dao.hctx.net TBC No. 24071454

Date: December 7, 2015