Gonzalez, Noel ( 2015 )

PD-1237-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO.# 13-13-00327-CR
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:
In the Court of Appeals for the Thirteenth District of
Texas
Court of Appeals of Texas,
Corpus Christi-Edinburg
No.13–13–00327–CR
Noel Gonzalez, Appellant,
v.
The State of Texas, Appellee.
NUMBER 13–13–00327–CR Delivered and filed February 5,
2015
On appeal from the 103rd District Court of Cameron
County, Texas. Trial Court No.2012-DCR-2380-D
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Larry Warner
Counsel for Noel Gonzalez
3109 Banyan Circle
Harlingen, Texas 78550
Phone (956)230-0361
Email: office@larrywarner.com
Texas Bar#20871500;
USDC, SDTX 1230;
Board Certified, Criminal Law,
September 22, 2015
Texas Board of Legal
Specialization(1983)
Member of the Bar of the
Supreme Court of the United
States (1984)
Page 1 of 23
Pursuant to TEX.R.APP.P.68.4,Appellant provides the
following identity of parties and counsel:
IDENTITY OF PARTIES AND COUNSEL
1. Noel Gonzalez, Petitioner
2. Hon. Luis V. Saenz, District Attorney, 964 East
Harrison; Brownsville, TX 78520
Attorney at trial and on appeal and on Petition for
Discretionary Review for the State;
3. Hon. Noe Robles, 23331 Tamm Ln, Harlingen, TX 78550
Attorney at trial for Defendant.
4. Hon. Rene Gonzalez, Assistant Cameron County District
Attorney, Attorney for Appellant on Appeal.
5. Hon. Larry Warner, Attorney for Petitioner on
Petition for Discretionary Review and on appeal, 3109
Banyan Circle, Harlingen, Texas 78550
Page 2 of 23
Pursuant to TEX.R.APP.P.68.4(a), Petitioner provides this
Table of Contents with reference to the pages of the
Petition, indicating the subject of each ground or
question presented for review.
TABLE OF CONTENTS
PAGE
Table of Contents.. . . . . . . . . . . . . . . . 3 - 4
Index of Authorities .. . . . . . . . . . . . . . . . 5
Statement re oral argument .. . . . . . . . . . . . . 6
Statement of the case.. . . . . . . . . . . . . . 7 - 8
Statement of procedural history.. . . . . . . . . . . 9
Grounds for Review. . . . . . . . . . . . . . . 10 - 11
1. The Court of Appeals decision conflicts with
another Court of Appeals decision on the same issue. The
issue is whether a Court of Appeals should use its
plenary power to reinstate a dismissed appeal. The
decision of the other Court of Appeals is Bomar v. Walls
Regional Hospital,971 S.W.2d 670(Tex.App.–Waco
1998,pet.gntd,r.o.g.9 S.W.3d 805)
2. The record is tainted with perjury. The record
shows that the defendant told the judge he had no history
of mental problems. At the hearing on the motion for new
trial, his mother testified that his mental problems and
hospitalizations were lifelong. The Defendant said his
guilty-plea lawyer told him to lie to the judge about
those problems. The cold record shows that he did just
that. The state did not call that guilty-plea lawyer at
the motion for new trial. Communist Party of the United
States v. Subversive Activities Control
Board,367U.S.1,19(1967)
Page 3 of 23
“Finding that the Party's allegations of
perjury had not been denied by the Attorney
General, and concluding that the
registration order based on a record
impugned by a charge of perjurious testimony
on the part of three witnesses whose
evidence constituted a not insubstantial
portion of the Government's case could not
stand, this Court remanded to the Board ‘to
make certain that (it) bases its findings
upon untainted evidence.’ 351 U.S. 115, 125,
76 S. Ct. 663, 668, 100 L. Ed. 1003.”
Communist Party of the United States v.
Subversive Activities Control
Board,367U.S.1,19(1967)
Argument.........................................12 - 18
Certificate of Service............................19 - 20
Appendix...............................................21
Certificate of Compliance..........................22 - 23
Page 4 of 23
Pursuant to TEX.R.APP.P.68.4(b), Petitioner provides an
Index of Authorities, arranged alphabetically and
indicating the pages of the petition where the authorities
are cited.
INDEX OF AUTHORITIES
CASES: PAGES
Communist Party of the United States v. Subversive
Activities Control Board, 367U.S.1, 19
(1967).......................................3, 6, 10, 14
An appellate court may remand for investigation
uncontroverted instances of perjury in the record.
Bomar v. Walls Regional Hospital,971 S.W.2d
670(Tex.App.–Waco 1998,pet.gntd,r.o.g.9 S.W.3d
805).....................................3, 8, 10, 12, 13
A Court of Appeals has plenary power
to reinstate a dismissed appeal.
Midkiff v. Hancock East Texas Sanitation, Inc.,996 S.W.2d
414(Tex.App.–Beaumont 1999,no pet.)...................13
The matter of plenary jurisdiction is important to the
jurisprudence of the state
Ex Parte Sledge, 391S.W.3d104, 105hn1(Tex.Crim.App.
2013).................................................14
While we are not unsympathetic to the applicant's
claim, this Court lacks the authority to grant him relief.
Ex parte Ghahremani,332 S.W.3d 470(Tex.Crim. App.
2011).................................................15
The Court of Criminal Appeals of Texas recently
granted relief to one whose trial was besmirched by
perjury.
Page 5 of 23
Pursuant to TEX.R.APP.P. 68.4(c), Petitioner includes a
short statement of why oral argument would be helpful.
STATEMENT RE ORAL ARGUMENT
Oral argument would be helpful to the decisional
process because counsel and the Judges of the Court of
Criminal Appeals could discuss when a Court of Appeals
should use its discretion to reinstate an appeal dismissed
for failure to file a brief, when counsel represented that
he had timely prepared the brief but was mistaken in
believing that it had been filed.
The Court and Counsel could discuss whether the
state’s failing to call the lawyer at the hearing on the
motion for new trial to respond to the allegation that
that lawyer told the defendant to lie to the judge about
not having any history of mental problems was the same
conduct as the Attorney General’s not denying the
Petitioner’s allegations of perjury in Communist Party of
the United States v. Subversive Activities Control
Board,367U.S.1,19(1967). That failure to deny prompted a
remand.
Page 6 of 23
Pursuant to TEX.R.APP.P.68.4(d), Petitioner provides a
statement of the case, noting briefly the nature of the
case, and reserving the details of the case for statement
with the pertinent grounds or questions.
STATEMENT OF THE CASE
The nature of the case was a prosecution of Petitioner
for sexual assault on a child, multiple counts. It is now
a review of the action of the Court of Appeals for the
Thirteenth District in failing to reinstate Petitioner’s
appeal.
Petitioner pleaded guilty and submitted the matter to
the Judge. He had had mental problems. He waived his right
to appeal.
The Judge found him guilty. The judge i m p o s e d a
sentence of confinement in the penitentiary. Defendant
changed counsel and moved for a new trial, averring that
his “plead-guilty” lawyer had told him to lie to the Judge
and say that he had never had any mental problems. The
evidence at the hearing on the Motion for New Trial from
the defendant’s mother tended to show that he had indeed
had a lifelong history of mental problems and
hospitalizations. The cold record plainly shows that he
did tell the Judge that he had not had any mental
problems. The state did not call defendant’s “plead-
guilty” lawyer as a witness at the hearing on the motion
for new trial.
Petitioner timely filed a Notice of Appeal to the
Court of Appeals for the Thirteenth District of Texas.
Page 7 of 23
The Court of Appeals dismissed Petitioner’s appeal,
holding his waiver of appeal effective.
Defendant filed a Motion to Reinstate and Brief in
Support, relying on Bomar v. Walls Regional Hospital,971
S.W.2d 670(Tex.App.–Waco 1998,pet.gntd,r.o.g.9 S.W.3d 805)
The Court of Appeals denied the Motion to Reinstate.
Petitioner sought and was granted an extension of time
to file this Petition for Discretionary Review.
Page 8 of 23
Pursuant to TEX.R.APP.P.68.4(e), Petitioner provides a
Statement of Procedural History.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The court of appeals is the Court of Appeals for the
Thirteenth District of Texas.
Re: TEX.R.APP.P.10.5(b)(3)(B), the date of Court of
Appeals’ opinion is February5. 2015. The decision denying
reinstatement is dated August 19, 2015.
Re: TEX.R.APP.P.10.5(b)(3)(C) the case number in the Court
of Appeals is No. 13-13-00327-CR
Re: TEX.R.APP.P.10.5(b)(3) (D), the date every motion for
rehearing or en banc reconsideration was filed.
On July 16, 2015, Petitioner filed a motion to
reinstate appeal. On August 3, 2015, the State requested
the Court to Deny Appellant’s Motion to Reinstate Appeal.
On July 17,2015, the Court of Appeals, 13th District
Court received Appelant’s Brief. On July 20, 2015, the
Court requested the state to respond to Appellant’s Motion
to Reinstate Appeal by July 30, 2015. Response was filed
August 3, 2015.
On August 19, 2015, Motion to Reinstate Appeal was
denied by the Court.Pursuant to TEX.R.APP.P.68.4(f),
Petitioner states briefly, without argument, the questions
presented for review, expressed in the terms and
circumstances of the case, but without unnecessary detail.
Page 9 of 23
GROUNDS FOR REVIEW
Grounds for Review. . . . . . . . . . . . . . . . . . .
1. The Court of Appeals decision conflicts with
another Court of Appeals decision on the same issue. The
issue is whether a Court of Appeals should use its plenary
power to reinstate a dismissed appeal. The decision of the
other Court of Appeals is Bomar v. Walls Regional
Hospital,971 S.W.2d 670(Tex.App.–Waco
1998,pet.gntd,r.o.g.9 S.W.3d 805)
2. The record is tainted with perjury. The record
shows that the defendant told the judge he had no history
of mental problems. At the hearing on the motion for new
trial, his mother testified that his mental problems and
hospitalizations were lifelong. The Defendant said his
guilty-plea lawyer told him to lie to the judge about
those problems. The cold record shows that he did just
that. The state did not call that guilty-plea lawyer at
the motion for new trial. Communist Party of the United
States v. Subversive Activities Control
Board,367U.S.1,19(1967)
Page 10 of 23
“Finding that the Party's allegations of
perjury had not been denied by the Attorney
General, and concluding that the
registration order based on a record
impugned by a charge of perjurious testimony
on the part of three witnesses whose
evidence constituted a not insubstantial
portion of the Government's case could not
stand, this Court remanded to the Board ‘to
make certain that (it) bases its findings
upon untainted evidence.’ 351 U.S. 115, 125,
76 S. Ct. 663, 668, 100 L. Ed. 1003.”
Communist Party of the United States v.
Subversive Activities Control
Board,367U.S.1,19(1967)
Page 11 of 23
Pursuant to TEX.R.APP.P.68.4(g), Petitioner provides a
direct and concise argument, with supporting authorities,
amplifying the reasons for granting review.
ARGUMENT
1. The Court of Appeals decision conflicts with
another Court of Appeals decision on the same issue. The
issue is whether a Court of Appeals should use its plenary
power to reinstate a dismissed appeal. The decision of the
other Court of Appeals is Bomar v. Walls Regional
Hospital,971 S.W.2d 670(Tex.App.–Waco
1998,pet.gntd,r.o.g.9 S.W.3d 805)
The appellate lawyer did not file the brief on time.
The Court of Appeals dismissed the appeal, holding
that Appellant had waived his right to appeal in a plea
bargain.
The appellate lawyer tendered a brief on the merits
as well as a motion requesting that the Court of Appeals
use its plenary power to reinstate the appeal. He said
that he had timely prepared the brief but was mistaken in
thinking that it had indeed been filed. The brief on the
merits assailed Appellant’s mental competence to execute
an effective waiver; it also alleged that the lawyer who
Page 12 of 23
had Appellant plead guilty had told Appellant to lie to
the Judge and say that Appellant had no history of mental
problems. Appellant’s mother testified at the hearing on
the motion for new trial that Appellant had indeed had a
lengthy history of mental problems and hospitalizations.
The appellate lawyer cited the Court of Appeals to
Bomar v. Walls Regional Hospital,971 S.W.2d
670(Tex.App.–Waco 1998,pet.gntd,r.o.g.9 S.W.3d 805), in
which the Tenth Court of Appeals held a motion to
reinstate untimely but reinstated the appeal nonetheless,
and asked the Thirteenth Court of Appeals to use its
plenary power to reinstate the appeal. It did not.
The Court of Criminal Appeals of Texas should grant
this petition and should allow full briefing to determine
that the Court of Appeals did indeed have plenary
jurisdiction to reinstate the appeal. The matter of
plenary jurisdiction is important to the jurisprudence of
the state, in addition to the formal reason stated in this
petition. In addition to Bomar, the matter arose in
Midkiff v. Hancock East Texas Sanitation, Inc.,996 S.W.2d
414(Tex.App.–Beaumont 1999,no pet.)
Page 13 of 23
This Court recently noted lack of jurisdiction in a
post-judgment proceeding. “While we are not unsympathetic
to the applicant's claim, this Court lacks the authority
to grant him relief.” Ex Parte Sledge, 391S.W.3d104,
105hn1(Tex.Crim.App.2013)
The Court of Criminal Appeals should grant this
petition to determine that the Court of Appeals did indeed
have plenary jurisdiction to reinstate the appeal.
2. The record is tainted with perjury. The record
shows that the defendant told the judge he had no history
of mental problems. At the hearing on the motion for new
trial, his mother testified that his mental problems and
hospitalizations were lifelong. The Defendant said his
guilty-plea lawyer told him to lie to the judge about
those problems. The cold record shows that he did just
that. The state did not call that guilty-plea lawyer at
the motion for new trial. Communist Party of the United
States v. Subversive Activities Control
Board,367U.S.1,19(1967)
“Finding that the Party's allegations of
perjury had not been denied by the Attorney
Page 14 of 23
General, and concluding that the registration
order based on a record impugned by a charge
of perjurious testimony on the part of three
witnesses whose evidence constituted a not
insubstantial portion of the Government's
case could not stand, this Court remanded to
the Board ‘to make certain that (it) bases
its findings upon untainted evidence.’ 351
U.S. 115, 125, 76 S. Ct. 663, 668, 100 L. Ed.
1003.” Communist Party of the United States
v. Subversive Activities Control
Board,367U.S.1,19(1967)
The Court of Criminal Appeals of Texas recently
granted relief to one whose trial was besmirched by
perjury. 332 S.W.3d 470(Tex.Crim. App.2011)
Here, the defendant himself commits aggravated perjury
at the instance of his counsel, telling the Judge that he
has no history of mental problems or hospitalizations; the
uncountered, uncontradicted evidence at the motion for new
trial showed that he had a lifelong history of both
problems and hospitalizations.
Normally we do not let people profit from their own
wrongs. Aggravated perjury is a crime against the justice
system itself. But here it was at the instance of an
officer of the Court, the initial defense lawyer, who told
the defendant to lie to the Judge and say that he did not
Page 15 of 23
have mental problems or hospitalizations when he did in
fact have those problems and hospitalizations. Here, the
defendant, according to the testimony at the motion for
new trial, had a history of mental problems and
hospitalizations.
So, the testimony about the mental problems and the
allegation that the “plead guilty” lawyer told the
defendant to lie to the judge about whether the defendant
ever had any mental problems or hospitalizations, combine
to take this case out of the realm of those in which we do
not let people profit from their own wrongs...here the
defendant’s lying to the judge about whether he had mental
problems or not.
If he was incompetent at the time of the plea, he was
not responsible for making that false statement to the
judge.
If he was competent but followed the advice of counsel
to lie to the judge, the system must react to its officer
impelling perjury.
If the Judge had known about the history and
hospitalizations at the plea, she should have at least
Page 16 of 23
ordered an examination to be sure of the defendant’s
competence. Hearing from the mother at the motion for new
trial about defendant’s history and hospitalizations, the
Judge should have granted a new trial.
The Court of Appeals should have determined that it
had plenary jurisdiction to reinstate the dismissed the
appeal, considering the seriousness of the allegation of
perjury and the explanation that the lawyer had prepared
the brief and was mistaken in thinking that the brief had
been filed, when it had not been filed.
CONCLUSION AND REQUEST FOR RELIEF
The Court of Criminal Appeals should grant this
Petition for Discretionary Review, considering that the
petition deals with plenary jurisdiction and with
allegations of a record tainted by perjury.
The Court of Criminal Appeals should allow full
briefing.
The Court of Criminal Appeals should remand for an
investigation of the averments of perjury, given that the
prosecutor did not call the defense lawyer, who, said the
defendant in the motion for new trial, told the defendant
Page 17 of 23
to lie to the judge and say that the defendant did not
have a history of mental problems and hospitalizations,
when, in fact, he did.
The Court of Criminal Appeals should require a new
trial.
Respectfully submitted
September 18, 2015
By:
Larry Warner
Attorney for Noel Gonzalez
3109 Banyan Drive
Harlingen, Texas 78550
Office: 956 230 0361
Facsimile: 1-866-408-1968
Email: office@larrywarner.com
State Bar of TX 20871500;
USDC, SDTX 1230(1981)
Board Certified, Criminal Law,
Texas Board Legal
Specialization(1983)
Member of the Bar of the
Supreme Court of the United
States(1984)
Page 18 of 23
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO.# 13-13-00327-CR
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:
In the Court of Appeals for the Thirteenth District of
Texas
Court of Appeals of Texas,
Corpus Christi-Edinburg
No.13–13–00327–CR
Noel Gonzalez, Appellant,
v.
The State of Texas, Appellee.
NUMBER 13–13–00327–CR Delivered and filed February 5,
2015
On appeal from the 103rd District Court of Cameron
County, Texas. Trial Court No.2012-DCR-2380-D
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CERTIFICATE OF SERVICE
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
This is to certify that a true and correct copy of the
foregoing APPELLANT’S PETITION FOR DISCRETIONARY REVIEW,
was sent Electronically Via EFC to the following counsel
of record on September 10, 2015, the day it was filed.
LUIS V. SAENZ, Cameron County District Attorney’s
Office, 964 E. Harrison, Brownsville, Texas 78520. Phone
(956) 544-0849. Fax (956) 544-0869. Email:
district.attorney@co.cameron.tx.us
LAW OFFICE OF LARRY WARNER
RESPECTFULLY SUBMITTED
September 18, 2015
By:
Page 19 of 23
Larry Warner,
Counsel for Noel Gonzalez
3109 Banyan Circle
Harlingen, Texas 78550
Phone: (956)230-0361
Facsimile: (866)408-1968
office@larrywarner.com
State Bar of TX 20871500;
USDC,SDTX 1230(1981)
Board Certified, Criminal Law,
Texas Board Legal
Specialization(1983)
Member of the Bar of the
Supreme Court of the
United States(1984)
Page 20 of 23
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO.# 13-13-00327-CR
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:
In the Court of Appeals for the Thirteenth District of
Texas
Court of Appeals of Texas,
Corpus Christi-Edinburg
No.13–13–00327–CR
Noel Gonzalez, Appellant,
v.
The State of Texas, Appellee.
NUMBER 13–13–00327–CR Delivered and filed February 5,
2015
On appeal from the 103rd District Court of Cameron
County, Texas. Trial Court No.2012-DCR-2380-D
********************************************************
APPENDIX
********************************************************
Order
A copy of the opinion of the Court of Appeals for
the Thirteenth District is attached.
Page 21 of 23
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO.# 13-13-00327-CR
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:
In the Court of Appeals for the Thirteenth District of
Texas
Court of Appeals of Texas,
Corpus Christi-Edinburg
No.13–13–00327–CR
Noel Gonzalez, Appellant,
v.
The State of Texas, Appellee.
NUMBER 13–13–00327–CR Delivered and filed February 5,
2015
On appeal from the 103rd District Court of Cameron
County, Texas. Trial Court No.2012-DCR-2380-D
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CERTIFICATE OF COMPLIANCE
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
1. This brief complies with the type-volume limitation
of FED. R. APP. P. 32(a)(7)(B) because: this brief
contains 3368 words, excluding the parts of the
brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).
2. This brief uses a monospaced typeface and contains
695 lines of text, excluding the parts of the brief
exempted by FED. R. APP. P. 32(a)(7)(B)(iii).
3. This brief complies with the typeface requirements
of FED. R. APP. P. 32(a)(5) and the type style
requirements of FED. R. APP. P. 32(a)(6) because:
this brief has been prepared in a proportionally
spaced typeface using Word Perfect X6 in Courier
Page 22 of 23
New in font size 14pt.
The undersigned understands a material
misrepresentation in completing this certificate,
or circumvention of the type-volume limits in 5th
CIR. R. 32.2.7, may result in the court’s striking
the brief and imposing sanctions against the person
signing the brief.
LAW OFFICE OF LARRY WARNER
RESPECTFULLY SUBMITTED
September 18, 2015
By:
Larry Warner,
Counsel for Noel Gonzalez
3109 Banyan Circle
Harlingen, Texas 78550
Phone: (956)230-0361
Facsimile: (866)408-1968
office@larrywarner.com
State Bar of Tx 20871500;
USDC,SDTX 1230(1981)
Board Certified, Criminal Law,
Texas Board Legal
Specialization(1983)
Member of the Bar of the
Supreme Court of the
United States(1984)
Page 23 of 23
NUMBER 13-13-00327-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
NOEL GONZALEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 103rd District Court
of Cameron County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam
Appellant, Noel Gonzalez, filed a notice of appeal in this Court on June 14, 2013.
On June 27, 2013, the trial court certified that appellant waived his right to appeal. See
TEX. R. APP. P. 25.2(a)(2). On June 28, 2013, this Court notified appellant’s prior counsel
of the trial court’s certification and ordered counsel to: (1) review the record; (2) determine
whether appellant has a right to appeal; and (3) forward to this Court by letter, counsel’s
findings as to whether appellant has a right to appeal and/or advise this Court as to the
existence of any amended certification. We further ordered counsel to file a motion with
this Court within thirty days of receipt of the notice, “identifying and explaining substantive
reasons why appellant has a right to appeal” if appellant’s counsel determined that
appellant had the right to appeal. See TEX. R. APP. P. 44.3; 44.4. No response was
received from appellant’s counsel. On September 3, 2013, we abated the appeal and
remanded the case to the trial court for a hearing to determine why counsel had failed to
comply with this Court’s June 28, 2013 order (the “44.3 Order”). On November 7, 2013,
appellant’s counsel filed “Counsel’s Response to Order of the [Thirteenth] Court of
Appeals Regarding Abatement” stating that counsel wished to continue representing
appellant and that counsel could file a brief within sixty days. Counsel’s response does
not establish that the trial court’s certification currently on file is incorrect or that appellant
otherwise has a right to appeal.
Following the abatement, on November 7, 2013, new appellate counsel filed an
appearance of counsel for appellant, a response to the abatement order, and a motion
for leave to file a supplemental response once the record is complete, specifically the
reporter’s record of the hearing on the motion for new trial. Again, this response does not
establish that the trial court’s certification currently on file is incorrect or that appellant
otherwise has a right to appeal.
On February 14, 2014, the reporter’s record was filed and the cause reinstated.
The Court granted appellant’s motion for extension of time to comply with the 44.3 Order
by filing a supplemental response by March 24, 2014. No response to the Court’s 44.3
Order was received. Thus, on April 15, 2014, we abated the case and remanded the
2
case to the trial court for a hearing to determine why counsel has failed to comply with
this Court’s 44.3 Order.
On June 27, 2014, the trial court held a hearing. Counsel’s statements at the
hearing do not establish that the certification currently on file with this Court is incorrect
or that appellant otherwise has a right to appeal.1 On September 4, 2014, we reinstated
the case and gave counsel thirty days to respond to our 44.3 Order and to explain why
the trial court’s certification is incorrect, if it is. Counsel requested that we extend the due
date until October 13, 2014, and we granted that request. Counsel has not filed a
response.
The Texas Rules of Appellate Procedure provide that an appeal must be dismissed
if the trial court’s certification does not show that the defendant has the right to appeal.
TEX. R. APP. P. 25.2(d); see id. R. 37.1, 44.3, 44.4. Moreover, we have reviewed the
record and there is nothing showing that the trial court’s certification currently on file is
incorrect or that appellant otherwise has the right to appeal.2 See TEX. R APP. P.
25.2(a)(2) (providing that a defendant pleading guilty pursuant to a plea agreement has
a right to appeal only matters raised by written motion filed and ruled on before trial if the
punishment imposed by the trial court does not exceed the punishment recommended by
1 Instead, at the hearing, counsel argued that the record was incomplete; therefore, he could not
determine whether appellant had a right to appeal and could not respond to this Court’s 44.3 Order. The
trial court stated that appellant had no right to appeal because he pleaded guilty pursuant to a plea
agreement with the State. However, the trial court granted counsel’s request for a complete record.
2 Pursuant to a plea agreement with the State, appellant pleaded guilty to three counts of
aggravated sexual assault of a child. The trial court followed the State’s recommendation on punishment
and assessed the agreed-upon twelve-year sentence. At the plea hearing, the trial court admonished
appellant orally and in writing that he was waiving his right to an appeal by pleading guilty.
Although appellant filed several pretrial motions, the trial court did not rule on any of those motions
before appellant pleaded guilty. Also, at a post-trial hearing, the trial court stated that it has not and would
not grant appellant permission to appeal this case.
3
the State and agreed upon by the defendant); Chavez v. State, 183 S.W.3d 675, 680
(Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to ascertain whether
an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss
a prohibited appeal without further action, regardless of the basis for the appeal.”); Cooper
v. State, 45 S.W.3d 77, 77 (Tex. Crim. App. 2001) (concluding that rule 25.2(b) forbids a
plea bargaining defendant from appealing the voluntariness of his plea); Escochea v.
State, 139 S.W.3d 67, 75 (Tex. App.—Corpus Christi 2004, no pet.) (stating that the
appellant “waived any appeal of the voluntariness of his plea [and that he waived any
claim of ineffective assistance] when he pleaded guilty to a felony pursuant to an agreed
punishment recommendation”). Accordingly, we must DISMISS this appeal.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of February, 2015.
4
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Envelope 6990268
Case Information
Location Court Of Criminal Appeals
Date Filed 09/18/2015 02:39:26 PM
Case Number PD-1237-15
Case Description
Assigned to Judge
Attorney LARRY WARNER
Firm Name LAW OFFICE OF LARRY WARNER
Filed By LARRY WARNER
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name TX REG OPERATING
Transaction Amount $0.00
Transaction Response
Transaction ID 11456456
Order # 006990268-0
Petition for Discretionary Review
Filing Type EFileAndServe
Filing Code Petition for Discretionary Review
APPELLANT'S PETITION FOR DISCRETIONARY
Filing Description
REVIEW
Reference Number NOEL GONZALEZ
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
09/22/2015 This petition was due in the Court of Criminal Appeals on March 9, 2015. The 13th
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=13b43235-ce49-4498-9c6d-12c4ebbe2aa1[9/22/2015 1:37:30 PM]
Envelope Details
Other 01:33:15 Court of Appeals issued mandate in this case on April 27, 2015. Your petition is
PM untimely; it will be received and scanned, but no action will be taken on this matter.
Documents
Lead Document FINAL PDR.pdf [Original]
eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
DISTRICT'S
LUIS V, SAENZ
district.attorney@co.cameron.tx.us ATTORNEY'S EServe Sent Yes Not Opened
OFFICE
Appendix
Filing Type EFileAndServe
Filing Code Appendix
Filing Description EXHIBIT A
Reference Number NOEL GONZALEZ
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Reason Time Rejection Comment
Other 09/22/2015 01:33:15 PM Same as the petition.
Documents
Lead Document MEMEORANDUM & OPINION -- 020515.pdf [Original]
eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
DISTRICT'S
LUIS V, SAENZ
district.attorney@co.cameron.tx.us ATTORNEY'S EServe Sent Yes Not Opened
OFFICE
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=13b43235-ce49-4498-9c6d-12c4ebbe2aa1[9/22/2015 1:37:30 PM]