                                                                                                                ACCEPTED
                                                                                                            05-19-00313-CR
                                                                                                  FIFTH COURT OF APPEALS
                                                                                                            DALLAS, TEXAS
    DALLAS COUNTY                                                                                         5/3/2019 10:44 AM
                                                                                                                 LISA MATZ
    DISTRICT ATTORNEY                                                                                                CLERK

    JOHN CREUZOT
    Appellate Division
                                                                                       FILED IN
                                                                                5th COURT OF APPEALS
                                                                                    DALLAS, TEXAS
May 3, 2019
                                                                                5/3/2019 10:44:32 AM
                                                                                      LISA MATZ
Ms. Lisa Matz                                                                           Clerk
Clerk of the Court
Court of Appeals, Fifth District of Texas at Dallas
600 Commerce Street, Suite 200
Dallas, Texas 75202

RE:      Appeal No. 05-19-00313-CR; Trial Court No. F18-47214-I
         Johnnie Otis Davis v. The State of Texas

Dear Ms. Matz:

       Please accept this letter as the State’s response to this Honorable Court’s letter
dated April 16, 2019, directing the parties to address whether this Court has
jurisdiction to entertain Appellant’s appeal.

       In the above case, Appellant entered a negotiated plea of guilty to the offense
of theft of property valued at less than $2,500, enhanced by two prior convictions,
and waived his right of appeal. (CR: 21–25).1 The trial court accepted Appellant’s
guilty plea and, in accordance with the terms of the plea agreement, placed Appellant
on five years’ deferred-adjudication probation, on January 22, 2019. (CR: 25, 27–33;
RR: 7–8). The trial court certified that this is a plea-bargain case and Appellant has no
right of appeal.2

       In plea-bargain cases, the defendant needs permission from the trial court to
appeal any matter not raised in a written motion and ruled on pretrial. Tex. R. App. P.
25.2(a)(2); Tex. Code Crim. Proc. art. 44.02. For purposes of this rule, a plea-bargain
case is any case “in which a defendant’s plea was guilty or nolo contendere and the
punishment did not exceed the punishment recommended by the prosecutor and

1
   “CR” refers to the clerk’s record in cause number 05-19-00313-CR, and “RR” refers to the
reporter’s record in the same cause.
2
  The trial court’s certification of Appellant’s right to appeal contained in the clerk’s record failed to
reflect whether Appellant had the right to appeal. Pursuant to this Court’s request, the trial court
filed a corrected certification of Appellant’s right to appeal on April 11, 2019. The corrected
certification states that this is a plea-bargain case and Appellant has no right of appeal.


133 N. Riverfront Blvd., LB–19, Dallas, Texas 75207-4399                                  (214) 653-3625
agreed to by the defendant.” Id.

       As previously noted, Appellant pleaded guilty pursuant to a plea agreement
with the State in which the punishment recommended by the prosecutor and agreed
to by Appellant was five years’ deferred-adjudication probation. (CR: 21–25, 27–33).
The judgment reflects that the trial court followed the plea agreement and assessed
the agreed punishment. (CR: 27). Therefore, this is a plea-bargain case and Appellant
could appeal only with the permission of the trial court, which he did not obtain.

        Additionally, Appellant explicitly waived his right of appeal. (CR: 23). A
defendant in a non-capital felony case may waive any rights secured to him by law,
including the right of appeal. See Tex. Code Crim. Proc. art. 1.14; Ex parte Delaney, 207
S.W.3d 794, 796 (Tex. Crim. App. 2006). A waiver of a right of appeal is valid as long
as it was made voluntarily, knowingly, and intelligently. See Delaney, 207 S.W.3d at
796–97. “When a defendant waives his right of appeal as part of an agreement on
sentencing and the agreement is followed by the trial court, his waiver is made
knowingly, intelligently, and voluntarily, and he may not appeal any matters unless the
trial court first grants permission.” Vela v. State, Nos. 01-12-00889-CR, 01-12-00890-
CR, 2013 WL 1503595, at *1 (Tex. App.—Houston [1st Dist.] Apr. 11, 2013, no pet.)
(mem. op., not designated for publication) (first citing Ex parte Broadway, 301 S.W.3d
694, 697–99 (Tex. Crim. App. 2009) and then citing Blanco v. State, 18 S.W.3d 218,
219–20 (Tex. Crim. App. 2000)); see Tex. R. App. P. 25.2(a)(2).

       Appellant waived his right of appeal in this case as part of the plea agreement
he entered into with the State. (CR: 23). The trial court accepted the plea agreement
and sentenced Appellant in accordance with the terms agreed to by Appellant and the
State. (CR: 21–25, 27–33; RR: 7–8). Appellant has, therefore, voluntarily waived his
right of appeal in this case.

      This appeal should be dismissed for lack of jurisdiction.

                                         Respectfully submitted,

                                         /s/ Rebecca Ott Labardini

                                         _____________________________
                                         Rebecca Ott Labardini
                                         Assistant District Attorney
                                         State Bar Number 24074842
                                         Frank Crowley Courts Building
                                         133 N. Riverfront Boulevard, LB-19
                                           2
                                      Dallas, Texas 75207-4399
                                      (214) 653-3625 | (214) 653-3643 fax
                                      Rebecca.Ott@dallascounty.org

cc:   Mr. Bruce Anton, Attorney for Appellant
      (via electronic service through efile.txcourts.gov to ba@udashenanton.com)




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