                                                                                             ACCEPTED
                                                                                         04-15-00384-CR
                                                                             FOURTH COURT OF APPEALS
                                                                                  SAN ANTONIO, TEXAS
                                                                                    7/20/2015 1:30:10 PM
                                                                                          KEITH HOTTLE
                                                                                                  CLERK

                                 No. 04-15-00384-CR

                                IN THE
                   FOURTH COURT OF APPEALS OF TEXAS
                        AT SAN ANTONIO, TEXAS

                              RAYMOND ZAPATA,
                                  Appellant

                                          v.

                             THE STATE OF TEXAS,
                                   Appellee

 RESPONSE TO THE ORDER PROPOSING TO DISMISS THIS APPEAL
  PURSUANT RULE 25.2(d) OF THE TEXAS RULES OF APPELLATE
                        PROCEDURE

TO THE HONORABLE COURT OF APPEALS:

        Comes now RAYMOND ZAPATA, Appellant, by and through undersigned

counsel, in reply to the ORDER of this Honorable Court dated July 16, 2015, and

shows the Court the following:

   I.      Procedural history:

        Zapata was charged by indictment in cause number 2014CR6345 with one

count aggravated robbery. (CR at 4). This offense was alleged to have been

committed in Bexar County, Texas, on or about April 27, 2014. Zapata was

represented by attorney Vincent D. Callahan.

        On June 12, 2015, pursuant to a written plea agreement with the State,

Zapata pleaded guilty to the offense alleged in the indictment. The parties agreed
in writing that the punishment would be assessed at 50 years of imprisonment with

a $2,000 fine. (CR at 34). The sentence would run concurrent with the aggravated

robbery case in cause number 2014CR6346. (CR at 34). As part of the plea

agreement, Zapata agreed in writing to voluntarily waive the right of appeal. (CR

at 34) . By his signature, the trial court approved Zapata’s waiver and voluntary

relinquishment of his known rights, including his waiver of the right of appeal.

(CR at 38).

      On June 12, 2015, the trial court, the Honorable Steven C. Hilbig presiding,

followed the terms of the plea agreement and sentenced Zapata to 50 years of

imprisonment in the Institutional Division with a $2,000 fine. (CR at 60-1). The

sentence was ordered to be served concurrently with the sentence imposed in cause

number 2014CR6346. (CR at 60). The trial court accurately certified that this is a

plea-bargain case and that Zapata has “NO right of appeal.” (CR at 62). By his

signature on the certification, Zapata acknowledged that he was informed that he

has no right of appeal.

      Despite having waived the right of appeal as part of his plea agreement,

Zapata timely filed a pro se notice of appeal with the District Clerk on June 25,

2015. (CR at 65-6). On June 25, 2015, the trial court appointed the Bexar County

Public Defender’s Office to represent Zapata in his attempted appeal. (CR at 68).

The clerk’s record was filed on July 9, 2015. On July 16, 2015, this Court gave


                                          2
written notice that the appeal will be dismissed pursuant to Rule 25.2(d) of the

Texas Rules of Appellate Procedure unless an amended certification showing that

Zapata has the right to appeal is made part of the appellate record by August 14,

2015. This is court-appointed counsel’s response to the Court’s ORDER.

   II.      No right of appeal:

         In a plea-bargain case where the sentence does not exceed the agreed-upon

punishment, the defendant may appeal only matters that were raised by written

motion and ruled upon before trial, or by getting the trial court’s written

certification that he has permission to appeal. See TEX. R. APP. P. 25.2(a)(2). 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).

         This was a plea-bargain case. As noted above, the clerk’s record shows that

Zapata entered a guilty plea to the charged offense pursuant to the terms of a

written plea agreement with the State. The trial court followed that plea agreement

by sentencing Zapata to 50 years of imprisonment with the sentence to run

concurrently with cause number 2014CR6346. The trial court accurately certified

that this is a plea-bargain case and that Zapata has “NO right of appeal” because

the plea agreement was followed. Zapata, by his signature, acknowledged that he

was informed that he has no right of appeal. Further, he voluntarily waived the


                                           3
right of appeal in writing when he signed the written plea agreement. (CR at 34).

For these reasons, the trial court’s certification of the defendant’s right of appeal

accurately reflects that this is a plea-bargain case, that the terms of the plea bargain

were followed, and that Zapata has no right of appeal.

   III.   Waiver:

      A defendant may waive the right of appeal, as long as the waiver is made

“voluntarily, knowingly, and intelligently.” See TEX. CODE CRIM. PROC. art. 1.14

(“The defendant in a criminal prosecution for any offense may waive any rights

secured him by law.”); Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App.

2009). The clerk’s record shows that Zapata voluntarily waived the right of appeal

in writing as part of the plea agreement and the trial court approved that waiver.

Undersigned counsel can identify nothing in the clerk’s record to show that the

trial court failed to follow the terms of the plea bargain, or that Zapata’s written

waiver of the right of appeal was involuntary.

      Since Zapata has validly and voluntarily waived the right of appeal and

accepted the benefit of his plea bargain, this Court has not acquired jurisdiction

over the attempted appeal in this case. Marsh v. State, 444 S.W.3d 654, 660 (Tex.

Crim. App. 2014)(“…because Appellant had validly waived his right to appeal, the

court of appeals never acquired jurisdiction.”). If Zapata now wishes to argue that

he received ineffective assistance from his plea counsel or that his guilty plea was


                                           4
involuntary, he will have to raise those arguments in a post-conviction writ. He

cannot make those arguments in this attempted appeal. See TEX.R.APP.P.

25.2(a)(2).

   IV.    No amended trial court certification will be sought by counsel:

      For all of the reasons stated above, the undersigned attorney can find no

right of appeal for Zapata. Nothing in the record suggests that the trial court

intended to give Zapata permission to appeal or that any appealable pretrial

motions were filed and ruled on. In fact, as noted above, Zapata explicitly waived

the right of appeal in writing as part of the plea agreement. The waiver is

enforceable against him. For that reason alone, the trial court’s certification that he

has no right of appeal is accurate. Marsh, 444 S.W.3d at 660.

      In short, undersigned counsel can find no reason to seek an amended

certification from the trial court that would give Zapata the right of appeal. The

certification is accurate in that it comports with the proceedings in the trial court.

Therefore, the undersigned cannot prevent this Court from dismissing this

attempted appeal. Undersigned counsel also cannot raise legal claims—such as an

argument that plea counsel rendered ineffective assistance —in this attempted

direct appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.

2006)(where the defendant has no right to appeal after his plea bargain, dismissal




                                           5
of the appeal is required, with no inquiry by the appellate court into even possibly

meritorious claims).

   V.      Relief available:

        Although the Court of Appeals will dismiss this this appeal, Zapata may still

challenge his conviction after the mandate issues by filing an application for a writ

of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal

Procedure. He may also seek relief by filing an original petition for a writ of

certiorari with the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN.

art. 4.04 (West 2005), and TEX. CONST. art. V, § 5. However, undersigned counsel

is appointed to represent Zapata on direct appeal only. He will not represent or

assist Zapata with any post-conviction or original-proceeding challenges to his

conviction and sentence. Zapata will have to pursue those remedies on his own, or

with retained counsel, if he so chooses.

        WHEREFORE, undersigned counsel, is compelled to concede that Zapata

has no right of appeal from the underlying criminal case and must also concede

that the Honorable Court of Appeals may dismiss this appeal for that reason. No

amended certification of the defendant’s right of appeal will be sought.

                                        Respectfully submitted,

                                        /s/ Richard B. Dulany, Jr.
                                        _________________________________
                                        RICHARD B. DULANY, JR.
                                        Texas Bar No. 06196400
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                                      Assistant Public Defender
                                      Bexar County Public Defender’s Office
                                      101 W. Nueva St., Suite 310
                                      San Antonio, Texas 78205
                                      (210) 335-0701
                                      FAX (210) 335-0707
                                      richard.dulany@bexar.org

                                      ATTORNEY FOR APPELLANT


             CERTIFICATE OF SERVICE AND COMPLIANCE

      I HEREBY CERTIFY that a true and correct copy of the above and

foregoing response has been delivered electronically to the Bexar County District

Attorney’s Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St.,

Suite 710, San Antonio, Texas 78205, on July 20, 2015. The total word count is

1,458, not including the appendix.

                                      /s/ Richard B. Dulany, Jr.
                                      _________________________________
                                      RICHARD B. DULANY, JR.




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Appendix: Trial Court’s Certification of Defendant’s Right of Appeal in cause
                          numbers 2014CR6345




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62
