Tony Donald Bobillo v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 15, 2022
• Docket: 05-21-01053-CR
• Status: Published

Opinion

DISMISS and Opinion Filed March 15, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01048-CR No. 05-21-01049-CR No. 05-21-01050-CR No. 05-21-01051-CR No. 05-21-01052-CR No. 05-21-01053-CR TONY DONALD BOBILLO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F21-11861-U, F20-12281-U, F20-12361-U, F20-12362- U, F20-72038-U & F20-72174-U

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Goldstein Opinion by Justice Goldstein Tony Donald Bobillo appeals his convictions for third degree felony theft of

property valued between $30,000 and $150,000, three state jail felony offenses of

credit/debit card abuse, and two state jail felony thefts of property valued between

$2500 and $30,000. TEX. PENAL CODE ANN. §§ 31.03(e)(4), (5), 32.31(d). Each state

jail felony was enhanced by two prior state jail felony convictions, making the

punishment range for those five offenses the same as the punishment range for the third degree felony theft offense, i.e., a “term of not more than 10 years or less than

two years.” Id. §§ 12.34, 12.425(a). The trial court assessed punishment at five years

for each offense, to be served concurrently. Appellant then appealed his convictions.

For the reasons that follow, we dismiss these appeals.

After reviewing the clerk’s records, the reporter’s record, and the documents

filed along with the notices of appeal, the Court had concerns regarding its

jurisdiction over these appeals. We instructed the parties to file jurisdictional briefs.

Appellant responded that he properly invoked this Court’s jurisdiction by filing

notices of appeal, citing Garza v. Idaho, 139 S.Ct. 738, 747 (2019). In contrast, the

State agreed with this Court’s assessment that appellant waived his right to appeal

when the trial court followed the terms of his plea bargain agreements with the State.

A defendant in a criminal case has the right of appeal as set out in the code of

criminal procedure and the rules of appellate procedure. See TEX. CODE CRIM. PROC.

ANN. art. 44.02; TEX. R. APP. P. 25.2(a). Rule 25.2 provides that in “a plea-bargain

case—that is, a case in which a defendant’s plea was guilty . . . and the punishment

did not exceed the punishment recommended by the prosecutor and agreed to by the

defendant,” a defendant may appeal only “those matters that were raised by written

motion filed and ruled on before trial,” “after getting the trial court’s permission to

appeal,” or “where the specific appeal is expressly authorized by statute.” TEX. R.

APP. P. 25.2(a)(2). When an appellant waives his right to appeal as part of his plea

bargain agreement with the State, a subsequent notice of appeal filed by him fails to

–2– “initiate the appellate process,” thereby depriving this Court of jurisdiction over the

appeal. Lundgren v. State, 434 S.W.3d 594, 599, 600 (Tex. Crim. App. 2014).

Here, appellant entered into plea bargain agreements with the State in which

the State waived its right to a jury trial and agreed to a term of five years for each

offense, to be served concurrently. In exchange, appellant agreed to plead guilty and

waive his right to appeal. The agreements were signed by appellant, his legal

counsel, the representative for the State, and the trial court. The judgments and

reporter’s record show the trial court followed the plea bargain agreements. The

clerk’s records show there were no adverse rulings on any pretrial written motions.

And each trial court’s certification of appellant’s right to appeal states the case

involves a plea bargain agreement, appellant has no right to appeal, and appellant

waived his right of appeal. Thus, the trial court did not give permission to appeal.

Finally, in his notice of appeal and jurisdictional letter brief, appellant did not

identify any statute that expressly authorized his appeals. Under these circumstances,

appellant’s notices of appeal are ineffective to initiate the appellate process, and we

lack jurisdiction over the appeals.

–3– We dismiss these appeals for want of jurisdiction.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 211048F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TONY DONALD BOBILLO, On Appeal from the 291st Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F21-11861-U. No. 05-21-01048-CR V. Opinion delivered by Justice Goldstein. Justices Partida-Kipness THE STATE OF TEXAS, Appellee and Reichek participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered March 15, 2022

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TONY DONALD BOBILLO, On Appeal from the 291st Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-12281-U. No. 05-21-01049-CR V. Opinion delivered by Justice Goldstein. Justices Partida-Kipness THE STATE OF TEXAS, Appellee and Reichek participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered March 15, 2022.

–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TONY DONALD BOBILLO, On Appeal from the 291st Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-12361-U. No. 05-21-01050-CR V. Opinion delivered by Justice Goldstein. Justices Partida-Kipness THE STATE OF TEXAS, Appellee and Reichek participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TONY DONALD BOBILLO, On Appeal from the 291st Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-12362-U. No. 05-21-01051-CR V. Opinion delivered by Justice Goldstein. Justices Partida-Kipness THE STATE OF TEXAS, Appellee and Reichek participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TONY DONALD BOBILLO, On Appeal from the 291st Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-72038-U. No. 05-21-01052-CR V. Opinion delivered by Justice Goldstein. Justices Partida-Kipness THE STATE OF TEXAS, Appellee and Reichek participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TONY DONALD BOBILLO, On Appeal from the 291st Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-72174-U. No. 05-21-01053-CR V. Opinion delivered by Justice Goldstein. Justices Partida-Kipness THE STATE OF TEXAS, Appellee and Reichek participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

–10–