                                                                                              ACCEPTED
                                                                                          12-15-00012-CR
                                                                             TWELFTH COURT OF APPEALS
                                                                                           TYLER, TEXAS
                                                                                    7/17/2015 11:44:40 AM
                                                                                            CATHY LUSK
                                                                                                   CLERK

                               NO. 12-15-00012-CR
                        ________________________________
                                                                       FILED IN
                         IN THE COURT OF APPEALS       12th COURT OF APPEALS
                                                            TYLER, TEXAS
                    FOR THE TWELFTH JUDICIAL DISTRICT7/17/2015 11:44:40 AM
                             OF TEXAS AT TYLER              CATHY S. LUSK
                      ________________________________          Clerk


                 ANTHONY JERMAINE MALLARD, Appellant

                                          V.

                         THE STATE OF TEXAS, Appellee
                        ________________________________

                   On Appeal From The 188th Criminal District
                          Court of Gregg County, Texas
                         the Honorable David Brabham,
                        Presiding in Cause No. 43518-A
                    _____________________________________



                  APPELLANT’S MOTION FOR REHEARING



TO THE HONORABLE COURT OF APPEALS:

      Appellant Anthony Jermaine Mallard (“Mr. Mallard” or “Appellant”), files

this Motion for Rehearing pursuant to Rule 49.1 of The Texas Rules of Appellate

Procedure. In support of this motion, Mr. Mallard would show the following:

      By opinion handed down on July8, 2015, this Court dismissed Mr. Mallard’s

appeal. See Mallard v. State, No. 12-15-00012-CR, 2015 WL 4116749 (Tex. App.–Tyler,

July 8, 2015, no. pet. h.) (mem. op., not designated for publication). This motion for


Mallard v. State - Motion for Rehearing                                  Page 1 of 10
Rehearing is therefore timely.

                                          I. Facts

1.     After a bench trial conviction, Mr. Mallard was sentenced to five (5) years
       incarceration, for the second degree felony offense of sexual assault of a child.
       (C.R. 23).

2.     During the course of the punishment hearing held before the court on
       December 18, 2014, Mr. Mallard orally entered a non-negotiated waiver of his
       right to appeal. That waiver was based on the advice of counsel and occurred
       after Mr. Mallard had been sentenced by the trial court. (IV R.R. 65).

3.     The Trial Court’s Certification of Defendant’s Right of Appeal entered by the
       trial court on December 18, 2014, states that “the defendant has waived the
       right of appeal.” (C.R. 28).

4.     Having obtained new counsel, Mr. Mallard filed a timely motion for new trial,
       in which he complained that his trial counsel had rendered ineffective
       assistance of counsel.1 (C.R. 33).

5.     On February 16,2015, a hearing was held on the motion for new trial. (V R.R.
       passim). After noting that Mr. Mallard had waived his right to appeal at the
       punishment hearing, the trial court specifically allowed Mr. Mallard to
       proceed on his motion to “develop a record” because “an appellate court will
       have to deal with all these issues.” (V R.R. 10). The trial court denied the
       motion for new trial on substantive grounds, holding that the evidence did
       not establish ineffective assistance of counsel. (V R.R. 69).


1
  Note that the 30th day, January17, 2015, was a Saturday, and January19, 2015, was a
legal holiday, thereby causing Tuesday, January 20, 2015, to be the deadline for filing
this Motion for New Trial. TEX. R. CIV . P. 5. Though there was some confusion
regarding the application of the mailbox rule to criminal cases, the trial court ultimately
agreed that the rule did apply in criminal cases. (VR.R. 63). The uncontroverted
representation by counsel that the motion for new trial was deposited with the United
States Postal Service on the timely date of January20, 2015 (V R.R. 8), when combined
with the fact that the motion was date stamped and filed by the district clerk on
January22, 2015–which was within 10 days of the due date–is sufficient to demonstrate
the timeliness of the filing. See TEX. R. APP. P. 9.2.

Mallard v. State - Motion for Rehearing                                       Page 2 of 10
6.    On January 16, 2015, Mr. Mallard filed a timely notice of appeal. (C.R. 32).

7.    Pursuant to Rule 34.5( c) of the Texas Rules of Appellate Procedure, on June
      18, 2015, this Court notified the parties, the Gregg County district clerk, and
      the trial court that the trial court’s certification of defendant’s right of appeal
      was defective, and directed that a corrected trial court certification be filed on
      or before June 29, 2015, or the matter would be referred to the court for
      dismissal. See T EX. R. A PP. P. 34.5( c). The trial court took no action regarding
      this Court’s notice.

8.    By opinion handed down on July 8, 2015, this Court dismissed Mr. Mallard’s
      appeal. See Mallard v. State, No. 12-15-00012-CR, 2015 WL 4116749 (Tex.
      App.–Tyler, July 8, 2015, no. pet. h.) (mem. op., not designated for
      publication); T EX. R. A PP. P. 43.2(f). This motion for rehearing is therefore
      timely. See T EX. R. A PP. P. 49.1

9.    Mr. Mallard challenges his waiver of appeal on the grounds that it was
      entered without any consideration given by the State. However, even
      assuming a valid waiver of his right to appeal his trial and sentencing, for the
      reasons discussed below, he has not waived his right to appeal the denial of
      his motion for new trial, which occurred after he entered his waiver of appeal.

                                 I. Controlling Law

      A criminal defendant in Texas has a statutory right to appeal his or her

conviction. T EX. C RIM. P ROC. C ODE A NN. art. 44.02 (West 2006); see also Ex parte

Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009). A defendant may, however,

waive this right, if the waiver is executed voluntarily, knowingly, and intelligently.

Broadway, 301 S.W.3d at 697 (citing T EX. C RIM. P ROC. C ODE A NN. art. 1.14 (West

2005); Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003)). If some

consideration is given by the State in exchange for such a waiver of appeal, that



Mallard v. State - Motion for Rehearing                                     Page 3 of 10
waiver will be upheld. Broadway, 301 S.W.3d at 697–98 (consideration in form of

State’s consent to defendant’s waiver of jury trial).

      The Court of Criminal Appeals has explained the reviewing court should

examine the circumstances surrounding the waiver. For example, in Ex parte

Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006), the Court of Criminal Appeals

held that a pretrial or presentencing waiver of the right to appeal in a

non-plea-bargain case was invalid and could not be voluntarily, knowingly, and

intelligently made when the consequences of the waiver were unknown to the

defendant. The emphasis in Delaney was the absence of a bargained-for waiver in

exchange for an agreed-upon sentence. Broadway, 301 S.W.3d at 697 n.7.

      In Broadway, Broadway filed an application for writs of habeas corpus alleging

ineffective assistance of counsel on the grounds that his trial counsel failed to inform

him of his right to appeal his sentence and that they allowed him to sign a waiver

of appeal before sentencing. Id. at 696. At trial Broadway entered an open plea after

declining the State’s plea-bargain offer, which offered a minimum 25–year sentence.

Id. Broadway declined the State’s offer and entered the open plea, hoping that the

judge would consider deferred adjudication community supervision with drug

treatment. Id. In order to be able to seek deferred adjudication, Broadway waived

his right to have the jury assess punishment, and Broadway convinced the State to



Mallard v. State - Motion for Rehearing                                    Page 4 of 10
consent to the waiver of the jury trial in exchange for Broadway’s waiver of his right

to appeal. Accordingly, the Court concluded that Broadway voluntarily, knowingly,

and intelligently waived his right to appeal even though it was an open plea and

there was no agreement on punishment, because there was consideration given by

the State for the waiver. Id. at 699.

       Subsequently, in Washington v. State, the Court of Criminal Appeals applied

the Delaney rationale to invalidate a waiver where the defendant waived his right

to appeal before sentencing and without an agreement as to punishment, and where

the record did not confirm that the State gave any consideration for the waiver. 363 S.W.3d

589, 589–90 (Tex. Crim. App. 2012) (emphasis added) (citing Delaney, 207 S.W.3d at

799); cf. Blanco v. State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000) (waiver of

appeal enforceable when executed after conviction, but before sentencing, in

exchange for a recommended sentence).

       Here, the record surrounding Mr. Mallard’s appellate waiver shows the

following transpired:

THE COURT: Mr. Mallard, having found you guilty of this
offense, the Court is called upon to impose the punishment.
. . . .I’m going to assess your
sentence at five years confinement in the Institutional
Division of the Texas Department of Criminal Justice. I’m
going to give you credit for the time you served in the
county jail.
You do have a right to appeal this case. If


Mallard v. State - Motion for Rehearing                                       Page 5 of 10
you wish to appeal we need to talk about that. You have 30
days to make that decision.
Mr. Bennett, do you want to visit with him on
his appellate rights at this time or do you want to do that
before the 30 days?

MR. BENNETT: I can do it right now, Judge,
if you want me to.

THE COURT: All right. Let’s take a brief
recess. Thank you.

(Recess)

THE COURT: All right. Mr. Bennett, we’re
back on the record. What says Mr. Mallard on the issue of
whether he wishes to appeal or not?

MR. BENNETT: Judge, he does not wish to
appeal. I explained to him that, you know, if he appealed
and it got reversed he would still have to come back. It
doesn’t mean he’s a free man. I had a call last night from
somebody that just got out of prison Monday, and he thought
it was over with. No, it was reversed for a new trial,
you're facing 2 to 20. And that's his situation. I
explained that to him, and he agrees that he does not want
to appeal since it’s a five-year sentence.

THE COURT: Mr. Mallard, I understand you
wish to accept your five-year sentence and give up your
right of appeal?

THE DEFENDANT: Uh-huh, yes.

THE COURT: You need to answer out loud, sir.

THE DEFENDANT: Yes, sir.



Mallard v. State - Motion for Rehearing                       Page 6 of 10
THE COURT: You understand once you waive
your right to appeal you can’t come back and appeal the
case; do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: You need to -- sir, I’ve got to
hear you.

THE DEFENDANT: Yes, sir.

THE COURT: All right. If you and
Mr. Bennett will sign a written waiver at the clerk’s bench,
I’ll approve it. If there’s nothing further, we need to get
some paperwork done.

(IV R.R. 64-66).

         Noticeably absent from the proceeding is any consideration by the State in

return for Mr. Mallard’s gratuitous waiver of his right to appeal. Washington, 363

S.W.3d at 589–90. Further, Mr. Mallard’s “decision” to gratuitously waive his right

to appeal was directly influenced by the advice of his defense counsel–the same

person whom Mr. Mallard accused of ineffective assistance in his motion for new

trial.

         Secondly, the Court of Criminal Appeals has held that a defendant may waive

his right to appeal, but that his waiver will be knowingly and intelligently made

only under circumstances in which, and to the extent that, he is aware of what has

occurred in the trial proceedings. Restated, if a defendant enters a waiver of his right



Mallard v. State - Motion for Rehearing                                    Page 7 of 10
to appeal before he is aware of the consequences of his plea, the waiver is invalid.

See Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977); Ex parte Townsend,

538 S.W.2d 419, 420 (Tex. Crim. App. 1976). Only then is he in a position to know the

nature of the claims he could have brought on appeal but for his waiver. Ex parte

Reedy, 282 S.W.3d 492, 498 (Tex. Crim. App. 2009). Here, at the time that Mr. Mallard

entered his gratuitous, non-bargained-for appeal waiver, there is no way he could

have known that his trial counsel arguably rendered ineffective assistance of

counsel; that he would ultimately need to file a motion for new trial to create a

record of that ineffectiveness; or, that the trial court would deny his motion for new

trial. Id.

        At the time that Mr. Mallard entered his gratuitous appellate waiver, he was

manifestly not aware of the facts and the law applicable to the performance of his

trial counsel. Congnizant of the fact that criminal defendants may not understand

until well after the fact that their trial lawyer has provided ineffective assistance, the

Court of Criminal Appeals has held in a related context that

        [w]e do not require any defendant to risk alienating his trial lawyer by
        requiring the defendant to claim ineffective assistance of counsel at the time
        of trial. Further, because many errors by defense counsel are of a technical
        nature, the defendant may not even know errors by their trial lawyer are
        occurring, and cannot possibly object. Many times it is in the review of the
        record by the appellate attorney that errors of an ineffective assistance of
        counsel nature are discovered. The timely filed appeal to the court of appeals
        by appellant is a proper procedure for seeking relief.


Mallard v. State - Motion for Rehearing                                      Page 8 of 10
Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993).

      Such is the case here. Mr. Mallard waived his right to appeal based solely on

advice from his trial counsel–against whom he later made an ineffective assistance

of counsel claim in his motion for new trial. At the time that he entered his non-

bargained, gratuitous appellate waiver, Mr. Mallard had no way of knowing that the

performance of his trial attorney was arguably substandard, and that he would need

to appeal. Id.

      Finally, in the opinion dismissing Mr. Mallard’s appeal, this Court cited to

Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. However, that Rule does

not squarely apply in this situation. The rule refers only to plea bargains with regard

to guilty pleas, not gratuitously-entered, non-bargained for waivers of appeal. See

T EX. R. A PP. P. 25.2(a)(2). Regardless of whether a court feels that a defendant should

be “bound” by a gratuitously-entered, non-bargained for waiver of appeal, the plain

language of Rule 25.2(a)(2) does not contemplate that situation. In this case, Mr.

Mallard was found guilty by the trial court, and there was no bargain regarding

punishment. Nothing in Rule 25.2(a)(2) limits his right to appeal. See Dears v. State,

154 S.W.3d 610, 613 (Tex. Crim. App. 2005).

      Because the State gave no consideration for Mr. Mallard’s waiver of appeal;

he entered it without being aware of the consequences of his action; and, Rule 25.2



Mallard v. State - Motion for Rehearing                                     Page 9 of 10
does not limit Mr. Mallard’s right to appeal, this Court should allow Mr. Mallard his

right to appeal.

                                      PRAYER

      PREMISES CONSIDERED, APPELLANT Anthony Jermaine Mallard prays

that this Court grant Appellant’s Motion for Rehearing and reinstate this appeal.

Alternatively, Mr. Mallard prays that this Court allow Mr. Mallard to appeal the

denial of his motion for new trial. Mr. Mallard further prays for any other relief to

which he may show himself justly entitled.

                                          Respectfully submitted,

                                          /s/ A. Clay Graham
                                          A. Clay Graham
                                          TBN: 24064140
                                          Attorney at Law
                                          5719 Airport Freeway
                                          Fort Worth, TX 76117
                                          817-334-0081 (phone)
                                          817-887-1474 (fax)
                                          Email: aclaygrahamattorney@gmail.com
                                          Attorney for Appellant
                                          Anthony Jermaine Mallard

                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing instrument has
been furnished to counsel for the state by a manner compliant with the rules on this
16th day of July , 2015.

                                          /s/ A. Clay Graham
                                          A. Clay Graham


Mallard v. State - Motion for Rehearing                                 Page 10 of 10
