                                                                                ACCEPTED
                                                                            14-15-00038-CR
                                                            FOURTEENTH COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                       6/10/2015 9:14:55 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK



                     No. 14-15-00038-CR
                                                            FILED IN
                                                     14th COURT OF APPEALS
                             In the                     HOUSTON, TEXAS
                        Court of Appeals             6/10/2015 9:14:55 AM
                       Fourteenth District           CHRISTOPHER A. PRINE
                        Houston, Texas                        Clerk


                    Victor Lamar Jenkins,
                           Appellant

                                  v.

                      The State of Texas,
                           Appellee

           Appeal from the 299th Judicial District Court
                      Travis County, Texas
               Cause Number D-1-DC-13-302438

                        STATE’S BRIEF


                                 Rosemary Lehmberg
                                 District Attorney
                                 Travis County

                                 Angie Creasy
                                 Assistant District Attorney
                                 State Bar No. 24043613
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 (512) 854-9400
                                 Fax (512) 854-4811
                                 Angie.Creasy@traviscountytx.gov
                                 AppellateTCDA@traviscountytx.gov


Oral argument is not requested
                                     Table of Contents

Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Argument............................................................................................. 3
Prayer .................................................................................................10
Certificate of Compliance and Service................................................ 11




                                                       i
                                 Index of Authorities

     Cases
Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) ........... 4
Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006) ............... 4
Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) .............5, 6, 9
Strickland v. Washington, 466 U.S. 668 (1984) ................................. 6
     Rules
Tex. R. App. P. 25.2 ............................................................................. 3




                                                   ii
                          No. 14-15-00038-CR

                                 In the
                            Court of Appeals
                           Fourteenth District
                            Houston, Texas

                         Victor Lamar Jenkins,
                                Appellant

                                   v.

                          The State of Texas,
                               Appellee

             Appeal from the 299th Judicial District Court
                        Travis County, Texas
                 Cause Number D-1-DC-13-302438

                            STATE’S BRIEF


To the Honorable Fourteenth Court of Appeals:

   Now comes the State of Texas and files this brief in response to

that of the appellant.


                Summary of the State’s Argument

   The appellant argues that the trial court abused its discretion

when it failed to hold a hearing on his motion for new trial, which

alleged ineffective assistance of counsel.




                                        1
   As an initial matter, the appeal should be dismissed for want of

jurisdiction because the appellant waived his right to appeal and the

trial court’s certification reflects that the appellant has no right of

appeal.

   Additionally, the trial court did not abuse its discretion in failing

to hold a hearing on the motion for new trial because the motion did

not establish reasonable grounds for relief. The appellant claimed

that trial counsel promised him that the judge would give him

probation if he pled guilty and that, if he had known there was no

guarantee of probation, he would have accepted the plea bargain

agreement instead.

   But the record shows that the appellant rejected the plea bargain

and entered an unnegotiated plea in spite of repeated warnings that

there was no guarantee of probation and that the court could consider

the full range of punishment. In light of this record, the trial court

could have reasonably concluded that appellant could not show a

reasonable probability that the result of the proceeding would have

been different, but for counsel’s conduct. Consequently, the appellant

did not show reasonable grounds to believe he could prove ineffective



                                       2
assistance of counsel at an evidentiary hearing. Under these

circumstances, the trial court did not abuse its discretion in failing to

hold to a hearing on the appellant's motion for new trial.


                               Argument

The appeal should be dismissed because the appellant
waived his right to appeal.

    An appeal must be dismissed if a certification that shows the

defendant has the right of appeal has not been made part of the

record. Tex. R. App. P. 25.2(d). In this case, the trial court's

certification reflects that, “This is an unnegotiated plea and the

defendant has NO right of appeal, except for jurisdictional matters.”

CR 90.

   This certification is supported by the record. The following

exchange took place at the plea hearing:

      COURT: Knowing that and all the rights you're waiving –
      you also understand, sir, that you will – be agreeing to
      come to me unnegotiated, you are waiving your right to
      appeal? Do you understand that?

      DEFENDANT: Yes, Judge.

3RR 7.




                                       3
   Additionally, the appellant’s signed plea paperwork specifically

states, “Unnegotiated plea: If there is no plea bargain, then all non-

jurisdictional defects are waived, and you have no right to appeal

except for jurisdictional matters.” SX 1 at 6RR 8. Later, under

“WAIVERS”, the paperwork states, “After consulting with my

attorney, I freely, knowingly, and voluntarily: . . . WAIVE my right to

appeal.” SX 1 at 6RR 9.

   A pretrial waiver of appeal is valid if there is a plea bargain

agreement or if the State gave some consideration for the waiver. Ex

parte Delaney, 207 S.W.3d 794, 798 (Tex. Crim. App. 2006); Ex

parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009). The

State gives consideration if it waives its right to jury trial, thereby

allowing the defendant to seek deferred adjudication from the judge.

Broadway, at 695-99. That is exactly what happened in this case. The

State waived its right to a jury trial, which allowed the appellant to

ask the court for deferred adjudication, which is exactly what he did.

SX 1 at 6RR 11; 5RR 5-6.




                                       4
   Because the appellant received consideration for his waiver of

appeal, the waiver is valid. Because the waiver is valid, the appellant

has no right to appeal.

   Accordingly, this appeal should be dismissed for want of

jurisdiction.


The trial court did not abuse its discretion in failing to hold
a hearing on the motion for new trial.

   If this court determines that the appellant did not waive his right

to appeal, it must decide whether the trial court abused its discretion

in failing to hold a hearing on the motion for new trial.

   A trial court abuses its discretion in failing to hold a hearing if the

motion for new trial and accompanying affidavits (1) raise matters

that are not determinable from the record and (2) establish

reasonable grounds showing that the defendant could potentially be

entitled to relief. Smith v. State, 286 S.W.3d 333, 338-40 (Tex. Crim.

App. 2009).

   The appellant's motion and affidavit raised a matter not

determinable from the record, namely, whether trial counsel




                                      5
promised the appellant that he would receive probation if he pled

guilty and went to the judge for punishment. CR 101-04.

   But the appellant did not establish reasonable grounds for relief.

To establish reasonable grounds for relief on a claim of ineffective

assistance of counsel, the defendant must allege facts that would

reasonably show that (1) his counsel's representation fell below the

standard of professional norms, and (2) there is a reasonable

probability that, but for counsel's conduct, the result of the

proceeding would have been different. Smith, 286 S.W.3d at 335,

citing Strickland v. Washington, 466 U.S. 668 (1984).

   The appellant’s allegation meets the first prong of Strickland

because no competent trial counsel would guarantee probation in an

unnegotiated plea to an armed, home-invasion robbery.

   But the appellant is not able to meet the second prong of

Strickland, which requires him to show that there is a reasonable

probability that the result of the proceeding would have been

different, but for counsel's conduct. The appellant’s motion and

affidavit claim that, if he had known there was no guarantee of

probation, he would have accepted the plea bargain offer of 6 years



                                      6
prison. CR 103. But the record shows that the appellant rejected the

plea bargain and entered an unnegotiated plea in the face of

numerous, repeated warnings that there was no guarantee of

probation and that the court could consider the full range of

punishment.

   The trial court admonished the defendant that the punishment

range was “anywhere from five years to 99 years or life,” and the

appellant stated that he understood. 3RR 5. The court further stated:

     THE COURT: And, Mr. Jenkins, it is my understanding
     that the State – that you have chosen to come to me for
     punishment, there is no negotiated plea right now. And I
     know [defense counsel] has explained to you the full
     range of punishment, which is five years to 99 years or
     life, and he's also told you that under the law I can defer a
     sentence on an aggravated robbery. I have made no
     promises whatsoever to either side at this time. I don't
     know what I'll do. You need to be aware that it could go
     anywhere from deferred up to 99 or life. Do you
     understand that?

     THE DEFENDANT: Yes.

     THE COURT: And you're still happy to go forward with
     this plea today?

     THE DEFENDANT: Yes.

     THE COURT: Knowing that and all the rights you're
     waiving – you also understand, sir, that you will – be



                                    7
      agreeing to come to me unnegotiated, you are waiving
      your right to appeal? Do you understand that?

      THE DEFENDANT: Yes, Judge.

      THE COURT: Okay. Knowing that and all the rights you
      are waiving as set out in State's 1, how do you plead to the
      charge of aggravated robbery, a first-degree felony, on or
      about the 9th day of November, 2013, guilty or not guilty?

      THE DEFENDANT: Guilty.

      THE COURT: Are you pleading guilty because you are
      guilty and for no other reason?

      THE DEFENDANT: Yes, Judge.

3RR 6-7.

   Furthermore, the plea paperwork has his initials next to the

following punishment range: “FIRST DEGREE FELONY: a term of

life or any term of not more than 99 years or less than 5 years in the

Texas Department of Criminal Justice and, in addition, a fine not to

exceed $10,000.” SX 1 at 6RR 7. The paperwork later has his initials

next to, “PLEA OF GUILTY: . . . My plea is entered freely and

voluntarily, and without any coercion, duress or promise of benefit

other than that stated in the plea bargain agreement.” SX 1 at 6RR 10.

Since there was no plea bargain agreement in this case, the statement

implies that there were no promises at all. Finally, the appellant



                                     8
swore that all of the statements on the plea form were true. SX 1 at

6RR 10.

   In sum, the trial court could have reasonably concluded that

appellant could not show a reasonable probability that the result of

the proceeding would have been different, but for his counsel's

alleged promise, because the appellant proceeded forward despite

repeated warnings that there were no promises being made and that

he was subject to the full range of punishment.

   Because he could not show a reasonable probability that the result

of the proceeding would have been different, the appellant did not

show reasonable grounds to believe he could prove ineffective

assistance of counsel at an evidentiary hearing. Smith, 286 S.W.3d at

345.

   Because he did not show reasonable grounds to believe he could

prove ineffective assistance of counsel at an evidentiary hearing, the

trial court did not abuse its discretion in failing to hold to a hearing

on the appellant's motion for new trial.




                                      9
                                Prayer

   The State asks this Court to dismiss the appeal for lack of

jurisdiction.

   Alternatively, the State asks this Court to overrule the appellant’s

point of error and affirm the trial court’s judgment.



                        Respectfully submitted,

                              Rosemary Lehmberg
                              District Attorney
                              Travis County




                              Angie Creasy
                              Assistant District Attorney
                              State Bar No. 24043613
                              P.O. Box 1748
                              Austin, Texas 78767
                              (512) 854-9400
                              Fax (512) 854-4811
                              Angie.Creasy@traviscountytx.gov
                              AppellateTCDA@traviscountytx.gov




                                    10
             Certificate of Compliance and Service
   I certify that this brief contains 1,578 words. I further certify that,

on the 10th day of June, 2015, a true and correct copy of this brief was

served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the defendant’s attorney,

Paul M. Evans, 811 Nueces Street, Austin, Texas 78701




                              Angie Creasy




                                      11
