                                                                                                         ACCEPTED
                                                                                                     04-15-00592-CR
                                                                                         FOURTH COURT OF APPEALS
                                                                                              SAN ANTONIO, TEXAS
                                                                                                11/2/2015 1:57:06 PM
                                                                                                      KEITH HOTTLE
                                                                                                              CLERK

                                    NO. 04-15-00592-CR

                       IN THE COURT OF APPEALS            FILED IN
                                                   4th COURT OF APPEALS
               FOURTH COURT OF APPEALS DISTRICT OF TEXAS
                                                    SAN ANTONIO, TEXAS
                        AT SAN ANTONIO, TEXAS      11/02/2015 1:57:06 PM
                                                                              KEITH E. HOTTLE
                               DAVID DEVIN TREVINO,                                Clerk
                                      Appellant

                                                v.

                                 THE STATE OF TEXAS,
                                       Appellee

    APPELLANT’S RESPONSE TO THE ORDER PROPOSING TO DISMISS
             THIS APPEAL FOR NO RIGHT OF APPEAL

TO THE HONORABLE COURT OF APPEALS:

          Comes now DAVID DEVIN TREVINO, Appellant, by and through

undersigned counsel, in reply to the order of this Honorable Court dated October

21, 2015, shows the Court the following:

     I.     Procedural history:

          Appellant was charged by indictment in cause number 2015CR4750 with

theft, $1,500 - $20,000, alleged to have been committed in Bexar County, Texas,

on or about April 2, 2014. (CR, 4). 1

          On August 31, 2015, pursuant to a written plea agreement with the State,

Appellant pleaded nolo contendere to the underlying offense. (CR, 14-19, 20-33).


1
  A state jail felony, in violation of TEX. PENAL CODE §§ 31.03(a) & (b)(4)(A) (West 2011). The
indictment also alleged unauthorized use of a vehicle, but the State did not proceed on that count.
As part of the plea agreement, Appellant waived the right of appeal in writing.

(CR, 19). On September 3, 2015, the trial court, the Honorable Raymond Angelini,

Senior Judge sitting by assignment, followed the terms of the plea agreement and

sentenced Appellant to a term of two years of confinement in the Texas

Department of Criminal Justice – State Jail Division, suspended and probated for

four years, plus a fine of $1,500 and restitution in the amount of $8,158.54. (CR,

42-43). The trial court certified that this is a plea-bargain case, and Appellant has

“NO right of appeal.” (CR, 41). By his signature, Appellant acknowledged that he

was informed that he has no right of appeal in this case. (CR, 41).

         Appellant filed a notice of appeal, through counsel, on September 21, 2015.

The notice of appeal referenced a motion to determine restitution filed by trial

counsel. (CR, 47-48). On September 24, 2015, the trial court appointed the Bexar

County Public Defender’s Office to represent Appellant in this attempted appeal.

(CR, 50).

   II.      No right of appeal:

         Appellant has no right of appeal. As noted above, Appellant pleaded nolo

contendere to the charged offense pursuant to a written plea agreement with the

State. (CR, 14-19). As part of the plea agreement, Appellant waived the right of

appeal in writing. (CR, 19). The trial court certified that this is a plea-bargain case,




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and Appellant has “NO right of appeal.” (CR, 41). Appellant signed that notice.

(CR, 41).

          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). The undersigned attorney has reviewed documents including the electronic

clerk’s record of this case and can find no right of appeal for Appellant. See TEX.

R. APP. P. 25.2(a)(2) (in a plea-bargain case where the sentence did not exceed the

agreed-upon punishment, the defendant may appeal only: matters raised by written

motion and ruled upon before trial; or after getting the trial court’s permission to

appeal). Therefore, this Court has no choice but to dismiss the appeal. See Chavez

v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006)(where defendant has no

right to appeal after his plea bargain, dismissal of the appeal is required, with no

inquiry by the appellate court into even possibly meritorious claims); Monreal v.

State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003)(a valid waiver of appeal will

prevent a defendant from appealing without the consent of the trial court).

   III.      Relief available to Appellant:

          Mr. Trevino’s issue relates to the restitution order. The pre-printed plea

bargain agreement states “Restitution to be determined by the Court through

Community Supervision office.” Handwritten on the agreement, under “Other” is


                                              3
the following: “Restitution if any to be paid before fine ….” This agreement bears

the date August 31, 2015. (CR, 19). The judgment states that Mr. Trevino was

sentenced on September 3, 2015. (CR, 42-43). The certification of right of appeal

is dated September 3, 2015 (CR, 14), as are the conditions of probation (CR, 37-

41). The conditions state the amount of restitution as $8,158.54 (CR, 37).

Condition No. 28 assesses a 180-day jail term, beginning September 3, 2015, and

states “Defendant may be released early if restitution is paid.” (CR, 39).2

       On October 5, 2015, trial counsel timely filed a motion for new trial. 3 The

motion complained of the trial court’s limitation of cross-examination of the

complainant, the denial of a pre-sentence investigation, the denial of allocution,

and the denial of due process rights, all at the restitution/sentencing hearing. (Supp.

CR, 3-15).

       The plea bargain, the waiver of appeal, the certification of right of appeal,

and the motion for new trial are all interconnected in this case. The plea bargain

provided that restitution was to be determined by the probation department. The

amount of restitution was determined, after the plea bargain was entered into but

prior to sentencing. There is unpublished authority that such a plea bargain

agreement is not appealable if the defendant was afforded the opportunity to have a

2
  There is a subtle but very real difference between this judgment recitation and the trial court’s
oral pronouncement: “I’m going to give him 180 days in the Bexar County Jail until that money
is paid.” (Supp. CR, 11). This is one of the bases for the motion for new trial.
3
  The motion was timely because the 30th day after sentenced, October 3, 2015, was a Saturday.
                                                 4
restitution hearing prior to sentencing. Stretcher v. State, No. 06-08-00233-CR,

2009 Tex. App. LEXIS 8558 at *8-*9, 2009 WL 3672882 (Tex. App. – Texarkana

Nov. 6, 2009, no pet.)(mem. op., not designated for publication). The motion for

new trial and its attachments makes it clear that Mr. Trevino had a restitution

hearing prior to sentencing. (Supp. CR, 3-15). Therefore, the plea bargain is not

appealable.

      Furthermore, Mr. Trevino waived appeal. (CR, 19). A waiver of appeal

made contemporaneously with a plea and before sentencing is binding. Buck v.

State, 45 S.W.3d 275, 277-78 (Tex. App. – Houston [1st Dist.] 2001, no pet.).

      The motion for new trial was timely filed and may still be heard and, if

successful, lead to the relief sought by trial counsel. As the Court of Criminal

Appeals has said, a valid, express waiver of appeal does not waive a defendant’s

right to file a motion for new trial. Lundgren v. State, 434 S.W.3d 594, 599-600

(Tex. Crim. App. 2014). That is the proper remedy rather than a direct appeal.

      Although the Court of Appeals is required to dismiss this this appeal,

Appellant may file an application for a writ of habeas corpus pursuant to article

11.072 of the Texas Code of Criminal Procedure, after the mandate is issued, if he

does not get relief from his motion for new trial.




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      WHEREFORE, Appellant, by and through undersigned counsel, is

compelled to concede that the Honorable Court of Appeals and must dismiss this

appeal for the reasons stated above.

                                       Respectfully submitted,


                                       /s/ Michael D. Robbins
                                       MICHAEL D. ROBBINS
                                       Assistant Public Defender
                                       Paul Elizondo Tower
                                       101 W. Nueva St., Suite 370
                                       San Antonio, Texas 78205
                                       Bar No. 16984600
                                       (210) 335-0701
                                       FAX (210) 335-0707
                                       mrobbins@bexar.org

                                       ATTORNEY FOR APPELLANT




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                       CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the above and
foregoing response has been emailed to the Bexar County District Attorney’s
Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 710,
San Antonio, Texas 78205, on November 3, 2015.

                                   /s/ Michael D. Robbins
                                   MICHAEL D. ROBBINS
                                   Assistant Public Defender




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