                                                                                          PD-0587-15
                                                                       COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                     Transmitted 11/13/2015 2:35:27 PM
November 16, 2015                                                      Accepted 11/16/2015 3:35:37 PM
                             No. PD-0587-15                                             ABEL ACOSTA
                                                                                                CLERK
                                     In the
                    Court of Criminal Appeals of Texas
                                   At Austin

                           

                            No. 01-14-00501-CR
                         In the Court of Appeals for the
                              First District of Texas
                                    At Houston

                           

                      ANDREW OLEVIA JONES
                                    Appellant
                                      V.
                       THE STATE OF TEXAS
                                    Appellee

                           

               STATE’S BRIEF ON APPELLANT’S
            PETITION FOR DISCRETIONAY REVIEW

                           

                                                           DEVON ANDERSON
                                                           District Attorney
                                                           Harris County, Texas

                                                           ALAN CURRY
                                                           State Bar No: 05263700
                                                           Assistant District Attorney
                                                           Harris County, Texas

                                                           JIM O’DONNELL
                                                           DAVID OVERHULS
                                                           Assistant District Attorneys
                                                           Harris County, Texas

                                                           1201 Franklin, Suite 600
                                                           Houston, Texas 77002
                                                           Tel.: 713/755-5826
                                                           curry_alan@dao.hctx.net
             STATEMENT REGARDING ORAL ARGUMENT

      This Court has not granted oral argument in this case, and oral argument is not

necessary.




                                         i
                     IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Complainant, victim, or aggrieved party:

             Gabriel Jones

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Alan Curry  Assistant District Attorney on appeal

             David Newell  Assistant District Attorney on appeal

             Jim O’Donnell  Assistant District Attorney at trial

             David Overhuls  Assistant District Attorney at trial

                    1201 Franklin, Suite 600
                    Houston, Texas 77002

      Appellant or criminal defendant:

             Andrew Olevia Jones




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Counsel for Appellant:

      Melissa Martin  Counsel on appeal

               1201 Franklin, 13th Floor
               Houston, Texas 77002

      Thomas Lewis  Counsel at trial

               1602 Washington
               Houston, Texas 77007

Trial Judge:

      Hon. Brock Thomas  Presiding Judge




                                    iii
                                           TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ......................................................i

IDENTIFICATION OF THE PARTIES ..........................................................................ii

INDEX OF AUTHORITIES .............................................................................................. v

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ...................... 2

STATEMENT OF FACTS .................................................................................................. 2

SUMMARY OF THE ARGUMENT ................................................................................. 2

REPLY TO SOLE ISSUE FOR REVIEW ....................................................................... 3

CONCLUSION ..................................................................................................................... 6

CERTIFICATE OF COMPLIANCE ................................................................................ 7

CERTIFICATE OF SERVICE ........................................................................................... 8




                                                               iv
                                          INDEX OF AUTHORITIES


CASES

Ex parte Broadway,
 301 S.W.3d 694 (Tex. Crim. App. 2009) ..................................................................... 3, 5
Ex parte Delaney,
 207 S.W.3d 794 (Tex. Crim. App. 2006) ......................................................................... 3


STATUTES

TEX. PENAL CODE ANN. §12.42(b) (2015) .......................................................................... 4


RULES

TEX. R. APP. P. 25.2(d) ........................................................................................................... 5
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 70.2................................................................................................................ 2




                                                                  v
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                              STATEMENT OF THE CASE

      The appellant was charged with the felony offense of assault of a family

member with a prior conviction for aggravated assault of a family member and, in two

enhancement paragraphs, was alleged to have previously committed the offenses of

aggravated robbery and possession of a controlled substance (C.R. 24). The appellant

entered a plea of guilty to the offense and a plea of true to the allegations in the first

enhancement paragraphs, with the State agreeing to abandon the second enhancement

paragraph (C.R. 53-54; R.R. 2-5; R.R. 3-7-8). After the trial court found the appellant

guilty of the charged offense, he made a finding of true as to the allegations in the

remaining enhancement paragraph and assessed the appellant’s punishment at

confinement for 15 years in prison (C.R. 91; R.R. 3-39-40). A written notice of appeal

was timely filed (C.R. 94).

                         
     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

       In an unpublished opinion, delivered April 14, 2015, the First Court of Appeals

dismissed the appellant’s appeal. This Court granted the appellant’s petition for

discretionary review on August 26, 2015, and the appellant’s brief in support of his

petition for discretionary review was filed on October 9, 2015. The State now files its

brief on the appellant’s petition for discretionary review in accordance with TEX. R.

APP. P. 70.2.

                         


                              STATEMENT OF FACTS

       The State challenges all factual assertions in the appellant’s brief and presents

its account of the facts within its reply to the appellant’s sole issue for review.

                         




                        SUMMARY OF THE ARGUMENT

       Under the unique facts of this particular case, it is not clear that any error was

preserved because (1) defense counsel was able to ask the question that he desired of

all prospective jurors, (2) no further objections were made to defense counsel’s

questioning along those lines, (3) the prospective juror who was being questioned and




                                             2
who answered adversely to the appellant was challenged for cause by agreement, and

(4) defense counsel had no objection to the jury that was ultimately selected.

                        




                    REPLY TO SOLE ISSUE FOR REVIEW

      Under his sole issue for review, the appellant claims, “The court of appeals

erred in dismissing appellant’s appeal by finding the State had given consideration for

the waiver in the plea papers and applying this Court’s holding in Ex parte Broadway[,

301 S.W.3d 694 (Tex. Crim. App. 2009),] rather than its holding in Ex parte Delaney,

207 S.W.3d 794 (Tex. Crim. App. 2006).”

      The appellant was initially charged with committing the felony offense of

assault of a family member with a prior conviction for aggravated assault of a family

member (C.R. 24). In two enhancement paragraphs, the appellant was also initially

alleged to have previously committed the offenses of aggravated robbery and

possession of a controlled substance (C.R. 24). At the time that the appellant entered

a plea of guilty and a plea of true to the first enhancement paragraph, the State agreed

to abandon the second enhancement paragraph (C.R. 53-54, 61; R.R. 2-5; R.R. 3-7-8).

By abandoning this latter enhancement allegation, the State reduced the appellant’s

punishment range to that of a first-degree felony, specifically removing the twenty-




                                           3
five year minimum sentence from the trial court’s consideration. TEX. PENAL CODE

ANN. §12.42(b) (2015).

       In the appellant’s plea paperwork, he signed a waiver of his right to appeal.

(C.R. 54, 59). At the hearing on the appellant’s plea of guilty, the trial court only

referred to the appellant’s prior conviction for aggravated robbery, and the appellant

pleaded true to that first enhancement paragraph (R.R. II-5). At a subsequent hearing

on the presentence investigation report, the trial court acknowledged the two

enhancement allegations and also that the State had abandoned the second

enhancement allegation that the appellant had previously been convicted of

possession a controlled substance (R.R. III-6).

       The appellant’s written admonishments reflected that the punishment range in

this case was that of a second degree felony enhanced by one prior conviction. (C.R.

55).   At the presentence investigation hearing, the trial court clarified that the

applicable punishment range was from five to ninety-nine years or life in prison (R.R.

III-7). The trial court sentenced the appellant to fifteen years in prison, a sentence

that he could not have received without the State agreeing to abandon one of the

enhancement paragraphs (C.R. 91). See TEX. PENAL CODE ANN. §12.42(b) (2015).

The trial court’s certification of the appellant’s right to appeal reflects that the

appellant has waived his right to appeal (C.R. 60).

       This Court has made it clear that a pre-sentence waiver of the right to appeal is

valid when there is a benefit conferred on the defendant by the State. Ex parte

                                           4
Broadway, 301 S.W.3d 694, 697-98 (Tex. Crim. App. 2009) (pre-sentence waiver of

right to appeal was valid based upon consideration of State’s consent to waiver of jury

trial). In this case, the appellant clearly benefitted from the State’s abandonment of

one of the enhancement paragraphs at the time of his plea of guilty regardless of

whether he received a sentence recommendation.             Id. (observing there was

consideration for the defendant’s pre-trial waiver, even though there was no plea

bargain). Consequently, the appellant has validly waived his right to appeal, and the

court of appeals properly dismissed the appeal in accordance with that waiver and the

trial court’s certification that the appellant had waived his right to appeal. TEX. R.

APP. P. 25.2(d). The appellant’s sole issue for review should be overruled.

                        




                                           5
                                  CONCLUSION

      It is respectfully submitted that all things are regular, that the judgment of the

First Court of Appeals should be affirmed, and that the appeal should be dismissed.

                                                     DEVON ANDERSON
                                                     District Attorney
                                                     Harris County, Texas


                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net




                                          6
                     CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 952 words, based upon the representation provided by the word

processing program that was used to create the document.



                                                   /s/ Alan Curry

                                                   ALAN CURRY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   TBC No. 05263700
                                                   curry_alan@dao.hctx.net




                                        7
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on November 13, 2015:


      Melissa Martin
      Attorney at Law
      1201 Franklin, 13th Floor
      Houston, Texas 77002


                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net


Date: November 13, 2015




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