                                                                    PD-1406-14
                                                   COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                Transmitted 3/17/2015 11:55:07 AM
                                                   Accepted 3/17/2015 1:11:01 PM
 March 17, 2015                                                      ABEL ACOSTA
                                                                             CLERK
                          PD-1406-14

                            IN THE
                  COURT OF CRIMINAL APPEALS
                          OF TEXAS
                    ______________________


                   JOSE RAMIRO DELAROSA,
                                 Appellant
                             VS.
                     THE STATE OF TEXAS
                                 Appellee

                    ______________________

  REVIEW OF THE DECISION OF THE COURT OF APPEALS, FIFTH
DISTRICT IN OPINION NO. 05-14-01020-CR, APPEALED IN CAUSE NO.
     F14-52888-T FROM THE 283RD JUDICIAL DISTRICT COURT
                      OF DALLAS COUNTY
                    ______________________

   APPELLANT’S REPLY BRIEF TO THE STATE’S BRIEF ON THE
          PETITION FOR DISCRETIONARY REVIEW
                 ______________________



                                 LESLIE MCFARLANE
                                 State Bar No. 13603500
                                 7522 Campbell Rd. Ste.113-216
                                 Dallas, TX 75248-1726
                                 lwmcfarlane@gmail.com


                                 ATTORNEY FOR APPELLANT
                     IDENTITY OF ALL PARTIES



As this is an appeal from a criminal conviction, the only parties are:

Respondent/Appellant: Jose Ramiro Delarosa

Attorney of record on appeal: Leslie McFarlane, 7522 Campbell Rd, Suite

     113-216, Dallas, Texas, 75248-1726

Petitioner/Appellee: Dallas County District Attorney, Susan Hawk, 133 N.

     Riverside Blvd. LB#19, Dallas, Texas 75207

     Michael R. Casillas, Assistant District Attorney, 133 N. Riverside

     Blvd. LB#19, Dallas, Texas 75207




                                   i
                       TABLE OF CONTENTS

IDENTITY OF PARTIES……………………………………………..                              i

INDEX OF AUTHORITIES ………………………………………….                              iv

STATEMENT REGARDING ORAL ARGUMENT ………………..                          1

STATEMENT OF THE CASE ………………………………………                               2

STATEMENT OF PROCEDURAL HISTORY …………………….                           2

RESPONSE TO GROUNDS FOR REVIEW ……………………..                           4

   1. The Court of Appeals properly dismissed this appeal for
   lack of jurisdiction due to the unambiguous granting of the
   motion for new trial in this matter. The case cited by the
   State as controlling in this matter is specifically not
   applicable in this situation when a case is appealed from a
   jury verdict of guilty on a not guilty plea.

   2. The Court of Appeals properly dismissed this case for lack
   of jurisdiction without addressing the allegations of
   inaccuracies in the record as the record does not contain
   inaccuracies.

   3. The Court of Appeals did not need to address the alleged
   inaccuracies in the appellate record as the record, on its
   face, did not contain inaccuracies. To presume the record
   contained inaccuracies simply because the trial court
   certified the right to appeal prior to granting the motion for
   new trial would be to deny the appellant the right to counsel
   and the right to file a Motion for New Trial.

ARGUMENT ………………………………………………………….                                    5

PRAYER FOR RELIEF ………………………………………………                                13

CERTIFICATE OF SERVICE ……………………………………….                             15



                                   ii
CERTIFICATE OF COMPLIANCE ………………………………….   15




                      iii
                        INDEX OF AUTHORITIES


CASES:

Bates v. State
     889 S.W.2d 306 (Tex. Crim. App. 1994) …………………….                 11

Hargesheimer v. State
     2006 Tex. App. Lexis 6115 (Tex. App. – Amarillo, 2006, p.d.r.
     refused, 2006 Tex. Crim. App. Lexis 2152 (Tex. Crim. App.
     Nov. 1, 2006)(not designated for publication) ……………….           8

Kirk v. State
      PD-1197-13, del’d January 28, 2015 (Tex. Crim. App. 2015)      10

LaPointe v. State
     225 S.W.3d 513 (Tex. Crim. App. 2007) ……………………..                6

McIntire v. State
      698 S.W.2d 652 (Tex. Crim. App. 1985) ……………………..               7

Olivo v. State
      918 S.W.2d 519 (Tex. Crim. App. 1996) ……………………...              11

Slaton v. State
      981 S.W.2d 208 (Tex. Crim. App. 1998) ……………………….               11

Taylor v. State
     247 S.W.3d 223 (Tex. Crim. App. 2008) …………………             2,5,6,7,13

Taylor v. State
     2008 Tex. App. LEXIS 6981 (2008) (not designated for
     publication) ………………………………………………………                              6

Taylor V. State
     163 S.W.3d 277 (Tex. App. – Austin, 2005), p.d.r. dism’d 2005 8

Wright v. State
     969 S.W.2d 588 (Tex. App. – Dallas, 1998) ………………….              11

                                    iv
CODES:

TEXAS CODE OF CRIMINAL PROCEDURE

    Article 44.01 (a) (3) ……………………………………………        10
    Article 44.01 (d) ………………………………………………..         10
    Article 44.02 ……………………………………………………             6,7



RULES:

TEXAS RULES OF APPELLATE PROCEDURE

    Rule 25.2 ……………………………………………………….               7
    Rule 25.2 (a) (2) ……………………………………………….          7
    Rule 25.2 (a) (2) (A) and (B) ………………………………….   6
    Rule 33.1 ………………………………………………………..              13
    Rule 44.4 ………………………………………………………..              6
    Rule 44.4 (b) ……………………………………………………             11
    Rule 47.1 ………………………………………………………..              10,11




                           v
                                PD-1406-14



                                   IN THE

                     COURT OF CRIMINAL APPEALS

                                OF TEXAS

                        ______________________

                       JOSE RAMIRO DELAROSA,
                                      Appellant
                                VS.

                         THE STATE OF TEXAS,
                                       Appellee
                        ______________________


TO THE HONORABLE COURT OF CRIMINAL APPEALS:



            The appellant, Jose Ramiro Delarosa, respectfully submits this

reply petition brief in the above styled and numbered cause by his

appointed counsel of record, Leslie McFarlane.



             STATEMENT REGARDING ORAL ARGUMENT



            In response to the State’s request for oral argument, the

appellant would request the opportunity to reinforce the fact that the opinion

                                      1
of Taylor v. State, 247 S.W.3d 233 (Tex. Crim. App. 2008) is not applicable

in this case as this appeal is from a jury verdict of guilty after a not guilty

plea. The distinction of appellate rights and appellate procedural rules

based upon a guilty plea and a not guilty plea are not addressed in Taylor

and must be examined prior to extending the Taylor holding to the facts of

this case.



                        STATEMENT OF THE CASE



             The appellant was indicted on March 31, 2014 for the offense of

unauthorized use of a motor vehicle. The trial began on July 8, 2014 with a

plea of not guilty before the jury. On July 9, 2014 the appellant was found

guilty by the jury and sentenced to 18 months confinement and a $1000

fine.



                STATEMENT OF PROCEDURAL HISTORY



             On July 8, 2014 the appellant entered a not guilty plea before

the jury to the charge of unauthorized use of a motor vehicle. The jury

found him guilty on July 9, 2014. On July 9, 2014 the trial court entered the



                                      2
trial court’s certification of the defendant’s right to appeal. On August 1,

2014 the appellant filed a pro se notice of appeal. On August 5, 2014 the

undersigned counsel was appointed to represent the appellant on appeal.

A Motion for New Trial was filed and granted on August 6, 2014. The

appellant filed a motion to dismiss the appeal in the Court of Appeals on

September 22, 2014. On that same date the Assistant District Attorney filed

a motion to abate the appeal. On September 24, 2014 the appellant filed a

response to the motion to abate. On October 2, 2014 the Court of Appeals

granted the motion to dismiss the appeal for lack of jurisdiction. The State

filed a petition for discretionary review on October 17, 2014. The appellant

filed a response brief on October 20, 2014. The trial court again heard the

case on December 17, 2014. The Court of Criminal Appeals granted the

petition for discretionary review on January 28, 2015 and ordered briefs

prepared in the matter. On February 6, 2015 the appellant filed a motion to

dismiss the petition for discretionary review for lack of a justiciable issue.

The State filed a response to the motion on February 9, 2015. The State

filed its brief on the merits on February 17, 2015. On February 25, 2015 the

Court of Criminal Appeals ordered additional briefs filed on the question of

the jurisdiction of the trial court to act in December, 2014 after the State

filed a petition for discretionary review. The State’s brief and the appellant’s



                                       3
brief on the jurisdictional issue were filed on March 11, 2015. The

appellant’s response brief on the State’s petition for discretionary review is

due March 19, 2015.



                 RESPONSE TO GROUNDS FOR REVIEW



1. The Court of Appeals properly dismissed this appeal for lack of

jurisdiction due to the unambiguous granting of the motion for new trial in

this matter. The case cited by the State as controlling in this matter is

specifically not applicable in this situation when a case is appealed from a

jury verdict of guilty on a not guilty plea.

2. The Court of Appeals properly dismissed this case for lack of jurisdiction

without addressing the allegations of inaccuracies in the record as the

record does not contain inaccuracies.

3. The Court of Appeals did not need to address the alleged inaccuracies in

the appellate record as the record, on its face, did not contain inaccuracies.

To presume the record contained inaccuracies simply because the trial

court certified the right to appeal prior to granting the motion for new trial

would be to deny the appellant the right to counsel and the right to file a

motion for new trial.



                                         4
 APPELLANT’S ARGUMENT IN RESPONSE TO THE GROUNDS FOR

                                    REVIEW



 Analysis for Response for Grounds for Review One, Two and Three



            The State argues that the Court of Appeals erred dismissing the

appeal in this case for lack of jurisdiction and not abating the appeal to

determine the trial court’s true intent in the granting of a motion for new trial

in this case. It is the opinion of the State that the fact that the record

includes the trial court certification of the right of the appellant to appeal the

conviction and the granted motion for new trial results in an inconsistent

record. Citing Taylor v. State, 247 S.W. 3d 223 (Tex. Crim. App. 2008), the

State insists that the trial court cannot certify the right to appeal and grant a

motion for new trial. The State asserts that court could not have intended

the appellant seek appellate relief and also grant a the new trial. The trial

court subsequently answered any question regarding its intent to grant the

motion for new trial when the case was again taken to trial on December

17, 2014. When the judgment was entered on that date the fact that the

trial court had earlier granted the motion for new trial was acknowledged in

the notes of the judgment. (CRsupp1:19)



                                        5
             The State relies on the opinion in Taylor, supra, for the

proposition that the certification of the right to appeal and the granting of a

motion for new trial are mutually exclusive. The appellant does not question

the right of the Court of Appeals to abate an appeal when there are obvious

discrepancies in the record, rather, the appellant believes that the record in

this case does not contain errors or inaccuracies. See, LaPointe v. State,

225 S.W.3d 513, 522 (Tex. Crim. App. 2007) (“The key to Rule 44.4 is that

there must be an error that the appellate court can correct.”).

             While it is not clear from the opinion in Taylor, supra, the

subsequent appellate history indicates that Taylor involved an appeal from

a plea bargain case. See, Taylor v. State, 2008 Tex. App. LEXIS 6981

(2008) (not designated for publication) 1 . The right to appeal from a

conviction resulting from a plea bargain is severely limited by statute. Tex.

Code of Crim. Proc. art 44.02, Tex. R. App. P. 25.2 (a) (2) (A) and (B). In

the Taylor case, the appellant had no right to appeal the conviction. This is


1
  Appellant waived a jury, pleaded guilty to indecency with a child, and pleaded
true to two enhancement paragraphs…Pursuant to a plea bargain agreement,
the trial court deferred adjudicating appellant’s guilt and placed him on 10 years’
community supervision. The State later moved to adjudicate guilt, alleging the
appellant violated the terms of this community supervision. The trial court granted
the motion, adjudicated appellant guilty, found the enhancement paragraphs true,
and assessed punishment at twenty-five years’ imprisonment. (Emphasis added)




                                            6
a critical difference from the case at bar. This appellant has an absolute

right to appeal the jury verdict. See, Tex. Code Crim. Proc. art 44.02 and

Tex. R. App. P. 25.2 (a) (2).

             The State cannot argue and does not argue that the appellant

is not entitled to appeal the conviction. Since the appellant has an

unrestricted right to appeal, the fact that the court certified the right to

appeal the conviction is not in conflict with the granting of the motion for

new trial. In fact, the certification of right to appeal was prepared by the

court the day the appellant was found guilty and before the notice of appeal

was filed or appellate counsel appointed 2. If the signing of this document

indicates that the trial court wanted to have any questions regarding the

conviction resolved on appeal, the signing of the mandated document

would preclude the trial court from ever considering a motion for new trial.

This reading of the Texas Rules of Appellate Procedure would render the

important right to file a motion for new trial meaningless. To apply Taylor to

appeals from guilty verdicts based upon a not guilty plea to the jury is to

deny the convicted person the absolute right to file a motion for new trial.

McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985).


2
  The notes and comments included in the 2002 change to Tex. R. App. P. 25.2 indicate
that the certification of the right to appeal should be signed at the time the judgment is
announced.


                                            7
            In Taylor v. State, 163 S.W.3d 277 (Tex. App. – Austin, 2005),

p.d.r. dism’d 2005, the Court of Appeals was faced with a situation where a

hearing on the motion for new trial was set within the 75-day time period

mandated by law. When the clerk’s record and the reporter’s record was

filed in the Court of Appeals prior to the hearing the State asserted the trial

court lost jurisdiction in the matter due to the Texas Rules of Appellate

Procedure and the trial court did not rule on the motion. On appeal, the

Court of Appeals held that the appellate rules could not deprive the

appellant of the right to have the trial court rule on a timely filed motion for

new trial. Taylor, (Austin), supra at 282. If the Texas Rules of Appellate

Procedure are interpreted as requested by the State, the important,

statutory right to file and have heard a motion for new trial will be abrogated

not by the Texas Legislature but by rules implemented by the Court of

Criminal Appeals.

            As previously noted, the certification of the right to appeal was

filed on the day the verdict was entered. The claim that the certification of

right to appeal denied the accused the right to file a motion for new trial

was addressed in Hargesheimer v. State, 2006 Tex. App. Lexis 6115 (Tex.

App. – Amarillo, 2006, p.d.r. refused, 2006 Tex. Crim. App. Lexis 2152




                                       8
(Tex. Crim. App. Nov. 1, 2006) (not designated for publication). In that case

the Court of Appeals stated:

      The trial court's certification was and is of no import viz his right
      to file a motion for new trial. The latter right is absolute, McIntire
      v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985) (stating
      that he right to file and have heard a motion for new trial is
      deemed absolute provided the right is asserted within the time
      period specified by law), and not dependent upon perfecting an
      appeal. Nor is the converse true; the right to perfect an appeal
      is not dependent upon the right to move for a new trial. The two
      are distinct procedures. Indeed, a new trial may be granted
      irrespective of whether a certification or notice of appeal is filed.

The fact that the trial court certified the right to appeal the jury verdict on

the day the verdict was entered cannot deny the trial court jurisdiction to

consider a motion for new trial. To do so would deny the convicted person

statutorily protected rights.

            It is important to note that the Texas Rules of Appellate

Procedure do not provide the appellant any provision to object to the

certification of the right to appeal. If this court is going to hold that a

certification of the right to appeal bars the statutory right to file a notice of

appeal, then the appellant must be allowed to object to the filing of the

certification of right to appeal until after the motion for new trial is filed.

Further, can the trial court enter a certification of right to appeal when the

appellant does not have appointed counsel? In this case the certification of

right to appeal was entered prior to the appointment of counsel. Can such

                                        9
an important document waiving statutory rights to a motion for new trial be

entered when the appellant is without counsel? These are the questions

that arise from the State’s interpretation of the Texas Rules of Appellate

Procedure.

              Again, the appellant does not object to this Court’s ruling in

Taylor, supra that a certification of the right to appeal from a guilty plea

pursuant to a plea bargain agreement and the granting of a motion for

new trial might require the abatement of an appeal to determine the true

intent of the court 3. In this situation where the appellant has an absolute

right to appeal, the certification of the right to appeal cannot preclude the

trial court from considering a motion for new trial.

              The State asserts that the Court of Appeals erred in not

addressing every issue raised in the appeal in this case pursuant to the

Tex. R. App. P. 47.1. The Court of Appeals did not address the issues in

the State’s response to the motion to dismiss the appeal because the State

did not appeal the granting of the motion for new trial. See, Tex. Code

Crim. Proc. art. 44.01 (a) (3) and (d). The appeal in this case was limited to


3
  Of course the appellant also asserts that in that situation the proper appellate
procedure requires the State to file a timely notice of appeal. The State did not file a
notice of appeal in this case. Further, the opinion in Kirk v. State, (PD-1197-13, Tex.
Crim. App. del’d January 28, 2015, rehearing filed) will allow the court to rescind a
motion for rehearing, prior to an appeal or retrial, if the granting of a motion for new trial
is questionable.


                                              10
the guilty verdict of the jury. Once the trial court granted the motion for new

trial, the guilty verdict no longer existed and there was nothing to appeal as

the case was returned to the position as that before the jury trial. Bates v.

State, 889 S.W.2d 306, 311 (Tex. Crim. App. 1994). Any question

regarding the trial court’s action in granting the motion for new trial on

August 6, 2014 should have been raised in the trial court or with a notice of

appeal filed by the State in a timely matter. Once the motion for new trial

was granted the Court of Appeals lost jurisdiction in the matter and could

not address the issued raised by the State for the first time in the response

to the motion to dismiss. Wright v. State, 969 S.W.2d 588, 589 (Tex. App. –

Dallas 1998, no pet.). When the Court of Appeals has no jurisdiction in an

appeal, the Texas Rules of Appellate Procedure cannot confer jurisdiction

over any other question before the court. Olivo v. State, 918 S.W.2d 519,

522 (Tex. Crim. App. 1996). Where there is no jurisdiction there can be no

other issue necessary to the final disposition of the appeal. The Tex. R.

App. P. 47.1 cannot be used to confer jurisdiction on an appellate court

when the provisions of the Code of Criminal Procedure are not followed.

Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

            Similarly, the State cannot invoke Tex. R. App. P. 44.4 (b) to

require that the Court of Appeals remand the case to the trial court due to



                                      11
the failure of the trial court to act or because of the trial court’s erroneous

actions. The record, on its face, does not contain an erroneous act. The

record simply reflects a decision of the trial court that the State disagrees

with. The proper remedy was for the State to timely file a notice of appeal,

which it did not do. Again, the Texas Rules of Appellate Procedure cannot

be used to confer jurisdiction upon an appellate court in violation of the

Texas Code of Criminal Procedure. Slaton, supra.

            The appellant incorporates all the arguments previously made

in this case including the jurisdictional questions addressed in the brief

ordered by this court on February 15, 2015 and filed on March 11, 2015.

The arguments regarding jurisdiction will not be repeated in this brief

having been answered in the March 11, 2015 brief.

            The appellant will not address the issues regarding the alleged

irregularities in the new trial held on December 17, 2014. That proceeding

is not before this court except as a reason for dismissing the previously

granted petition for discretionary review. The State had the opportunity to

present any objections to the trial court at the time the State brought the

case to retrial. Again, the State did not raise any objections and did not

appeal the decision of the trial court on December 17, 2014. The

arguments made above, citing the need for the State to timely appeal those



                                      12
issues raised at trial, would also apply to the December 17, 2014 trial. Just

as the defendant has the responsibility to first raise and timely object in the

trial court before addressing an issue on appeal, the State has the

responsibility to timely raise any and all objections at the trial court level

before raising an issue on appeal. Tex. R. App. P. 33.1.

            The record in this case indicates that the Court of Appeals

properly dismissed this appeal for lack of jurisdiction when the trial court

granted the motion for new trial. There was no error presented in the trial

court record that mandated the appeal be abated. The case law cited by

the State cannot serve to deny the appellant his legal right to file and have

considered a motion for new trial simply because the mandated certification

of right to appeal was filed by the trial court. The Court of Appeals properly

dismissed this appeal and this court should deny the relief sought by the

State in this petition for discretionary review.




                            PRAYER FOR RELIEF



            WHEREFORE, PREMISES CONSIDERED, the appellant asks

this court to limit the opinion in Taylor to those situations where an appeal



                                       13
is made from a plea bargained guilty plea and not expand the law to

include those appeals from a not guilty plea to a jury. The appellant asks

this court to find that the Court of Appeals acted properly in this case by

dismissing the appeal when the trial court granted the motion for new trial.

The appellant asks this court to find that any objections to that ruling should

have been raised by the State in a timely filed appeal. The appellant prays

this court find that the State cannot defy the Texas Rules of Appellate

Procedure in failing to preserve error at the trial court level and in failing to

file a timely notice of appeal while at the same time restrict the Rules of

Appellate Procedure when the appellant has the right to file a timely motion

for new trial. The appellant prays this court deny all relief sought in the

State’s petition for discretionary review.



                               Respectfully submitted,


                               /s/ Leslie McFarlane
                               State Bar No. 13603500
                               7522 Campbell Rd., Ste 113-216
                               Dallas, TX 75248-1726
                               (972) 934-1721
                               lwmcfarlane@gmail.com

                         ATTORNEY FOR RESPONDENT/APPELLANT




                                       14
                       CERTIFICATE OF SERVICE

            The undersigned attorney hereby certifies that a true and

correct copy of the foregoing brief was electronically served on Michael

Casillis of the Dallas County District Attorney’s Office and on the State’s

Prosecuting Attorney at the time of the efiling of this brief in the Court of

Criminal Appeals via the State provided electronic filing service on March

17, 2015.




                                          /s/Leslie McFarlane




            WORD COUNT CERTIFICATE OF COMPLAINCE



            The undersigned attorney certifies that this document was

prepared on the computer program Word for Mac 2011 and contains 3851

words.

                                          /s/ Leslie McFarlane




                                     15
