                                                                            PD-1327-15
                      PD-1327-15                           COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                         Transmitted 10/8/2015 10:45:42 AM
                                                            Accepted 10/8/2015 4:53:24 PM
                                                                            ABEL ACOSTA
                      NO._________________
                                                                                    CLERK

                            IN THE

                  COURT OF CRIMINAL APPEALS

                           OF TEXAS



              ANTHONY JERMAINE MALLARD
                       Petitioner

                                v.

                     THE STATE OF TEXAS
                          Respondent



         Petition is in Cause No. 43518-A from the 188th
        Criminal District Court of Gregg County, Texas,
               and Cause No. 12-15-00012-CR in the
        Court of Appeals for the Twelfth District of Texas



         PETITION FOR DISCRETIONARY REVIEW




                             A. Clay Graham
                             TBN: 24064140
                             Law Offices of A. Clay Graham
                             The Texas Building
                             855 Texas St. Ste 120
                             Fort Worth, TX 76102
                             817-334-0081 (phone)
                             817-887-1474 (fax)
October 8, 2015
                             Email:aclaygrahamattorney@gmail.com
                             Attorney for Petitioner
                             Anthony Jermaine Mallard
              IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s final judgment,
and the names and addresses of all trial and appellate counsel.

Trial Court Judge:                Hon. David Brabham, Judge
                                  188th Criminal Court, Gregg County

Petitioner:                       Anthony Jermaine Mallard

Petitioner’s Trial Counsel:       R. Daryll Bennett
                                  TBN: 02150700
                                  Attorney at Law
                                  P.O. Box 2645
                                  322 West Whaley
                                  Longview, Texas 75606

Petitioner’s Counsel on           A. Clay Graham
Motion for New Trial              TBN: 24064140
and Appeal:                       Attorney at Law
                                  5719 Airport Freeway
                                  Fort Worth, TX 76117

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Tanya Reed
                                  TBN: 24039204
                                  V. Christopher Botto
                                  TBN: 24064926
                                  District Attorney’s Office
                                  110 E. Methvin
                                  Longview, Texas 75601

Appellee’s Counsel                Zan Colson Brown
on Appeal:                        TBN: 03205900
                                  District Attorney’s Office
                                  110 E. Methvin
                                  Longview, Texas 75601


                                    ii
                                    TABLE OF CONTENTS
                                                                                                             page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi

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

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

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

GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.       The Court of Appeals erred when it held that Petitioner had
         waived his rights to appeal the denial of his motion for new
         trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         B.        The Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

         C.        Application of Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . 4

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


                                                        iii
                         INDEX OF AUTHORITIES

Cases                                                                           page

Blanco v. State,
      18 S.W.3d 218 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 7

Ex parte Broadway,
      301 S.W.3d 694 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 5, 6

Dears v. State,
      154 S.W.3d 610 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . 11

Ex parte Delaney,
      207 S.W.3d 794 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . 5, 7

Mallard v. State,
      12-15-00012-CR, 2015 WL 4116749 (Tex. App.–
             Tyler, July 8, 2015, no. pet. h.)
                    (mem. op., not designated for publication). . . . 2, 4

Monreal v. State,
     99 S.W.3d 615 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . 5

Randle v. State,
      847 S.W.2d 576 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . 11, 11

Ex parte Reedy,
      282 S.W.3d 492 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . 9, 10

Ex parte Thomas,
      545 S.W.2d 469 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . 9

Ex parte Townsend,
      538 S.W.2d 419 (Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . . . . 9

Washington v. State,
     363 S.W.3d 589 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . 7, 9


                                          iv
Statutes

T EX. C RIM. P ROC. C ODE A NN. art. 1.14 (West 2006). . . . . . . . . . . . . . . . . 5

T EX. C RIM. P ROC. C ODE A NN. art. 44.02 (West 2006). . . . . . . . . . . . . . . . 5

Court Rules

T EX. R. A PP. P. 9.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

T EX. R. A PP. P. 25.2(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

T EX. R. C IV. P. 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4




                                                       v
         STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                    STATEMENT OF THE CASE

      On February 27, 2014, Anthony Jermaine Mallard (“Mr. Mallard”

or “Petitioner”) was indicted for sexual assault of a child alleged to

have occurred on December 29, 2013. [C.R. 4]. Mr. Mallard pled not

guilty and a bench trial on the merits was held on December 11, 2014,

in the 188th Criminal District Court of Gregg County, Texas before the

Honorable David Brabham. [III R.R. passim]. The trial court found Mr.

Mallard guilty as charged. [III R.R. 121]. On December 18, 2014, a

hearing on punishment was held before the court, whereupon Mr.

Mallard was sentenced to five (5) years incarceration in the Texas

Department of Criminal Justice. [IV R.R. 64]. A timely notice of appeal

was filed on January 16, 2015. (CR 32). A timely motion for new trial

was filed on January 20, 2015. [C.R. 33]. A hearing on the motion was

held in the trial court on February 16, 2015. [V R.R. passim]. At the

conclusion of the hearing the trial court denied the motion for new trial.

[V R.R. 69].

                                    1
           STATEMENT OF PROCEDURAL HISTORY

      The opinion of the Twelfth Court of Appeals dismissing Mr.

Mallard’s appeal was handed down on July 8, 2015. See Mallard v. State,

12-15-00012-CR, 2015 WL 4116749 (Tex. App.–Tyler, July 8, 2015, no.

pet. h.) (mem. op., not designated for publication). Mr. Mallard filed a

timely motion for rehearing contesting the dismissal, which was

overruled on September 15, 2015.

                     GROUNDS FOR REVIEW

                   GROUND FOR REVIEW ONE

I.    The Court of Appeals erred when it held that Petitioner had
      waived his rights to appeal the denial of his motion for new
      trial.

                      REASONS FOR REVIEW

1.    The Twelfth Court of Appeals has decided an important

      question of state or federal law in a way that conflicts with the

      applicable decisions of the Court of Criminal Appeals or the

      Supreme Court of the United States.




                                   2
                             ARGUMENT

              GROUND FOR REVIEW ONE (Restated)

I.    The Court of Appeals erred when it held that Petitioner had
      waived his rights to appeal the denial of his motion for new
      trial.

      A.     Facts

      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]. 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]. 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].

      Having retained 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]. On February


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

                                     3
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].

       B.     The Opinion Below

       Based entirely on the trial court’s certification of defendant’s

right of appeal, which shows that the defendant had waived his right

of appeal, [C.R. 28], the court of appeal dismissed Mr. Mallard’s appeal.

See Mallard, 2015 WL 4116749 at *1. (citing T EX. R. A PP. P. 43.2(f)).

       C.     Application of Controlling Law

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


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. [V R.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.

                                       4
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 2006); 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

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).

      This Court 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), this Court 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, defendant filed an application for writs of habeas



                                    5
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 consent to the

waiver of the jury trial in exchange for Broadway’s waiver of his right

to appeal. Accordingly, this 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, this Court applied the

Delaney rationale to invalidate a waiver where the defendant waived

his right to appeal before sentencing and without an agreement as to



                                    6
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
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)



                                    7
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.

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


                                   8
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, this Court 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 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).



                                    9
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. Cognizant of the fact that

criminal defendants may not understand until well after the fact that

their trial lawyer has provided ineffective assistance, this Court 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.

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


                                   10
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, the court

of appeals 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

                                    11
action; and, Rule 25.2 does not limit Mr. Mallard’s right to appeal, this

Court should allow Mr. Mallard his right to appeal.

                        PRAYER FOR RELIEF

      WHEREFORE,          PREMISES       CONSIDERED,          Petitioner

respectfully prays that this Court grant discretionary review and allow

each party to fully brief and argue the issues before the Court of

Criminal Appeals, and that upon reviewing the judgment entered

below, that this Court reverse the opinion of the Twelfth Court of

Appeals and reverse the conviction entered below.

                                 Respectfully submitted,

                                 /s/ A. Clay Graham
                                 A. Clay Graham
                                 TBN: 24064140
                                 Law Offices of A. Clay Graham
                                 The Texas Building
                                 855 Texas St. Ste 120
                                 Fort Worth, TX 76102
                                 817-334-0081 (phone)
                                 817-887-1474 (fax)
                                 Email:aclaygrahamattorney@gmail.com
                                 Attorney for Petitioner
                                 Anthony Jermaine Mallard




                                   12
                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
2,276.

                                 /s/ A. Clay Graham
                                 A. Clay Graham

                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Gregg County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 7th day
of October , 2015.

                                 /s/ A. Clay Graham
                                 A. Clay Graham




                                   13
                          APPENDIX

1.   Opinion of the Twelfth Court of Appeals.




                               14
                                         NO. 12-15-00012-CR

                               IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

ANTHONY JERMAINE MALLARD,                                 §   APPEAL FROM THE 188TH
APPELLANT

V.                                                        §   JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                  §   GREGG COUNTY, TEXAS

                                        MEMORANDUM OPINION
                                            PER CURIAM
         Appellant was convicted of sexual assault of a child and sentenced to imprisonment for
five years. On January 16, 2015, he filed a notice of appeal.
         We have received the appellate record. The clerk’s record includes the trial court’s
certification that “the defendant has waived the right of appeal.” See TEX. R. APP. P. 25.2(a)(2).
The reporter’s record shows that, after sentence was imposed, Appellant waived his right to
appeal in open court.
         On June 18, 2015, we notified Appellant that the trial court’s certification stated he had
waived the right to appeal. Additionally, we warned that the appeal would be dismissed unless,
on or before June 29, 2015, a trial court certification showing Appellant’s right to appeal was
filed in this court.        No response has been filed.        Because the trial court’s certification
affirmatively shows that Appellant has waived the right to appeal, and the record supports the
trial court’s certification, we dismiss the appeal. See TEX. R. APP. P. 43.2(f).
Opinion delivered July 8, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JULY 8, 2015


                                          NO. 12-15-00012-CR


                              ANTHONY JERMAINE MALLARD,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                 Appeal from the 188th District Court
                            of Gregg County, Texas (Tr.Ct.No. 43518-A)

                        THIS CAUSE came to be heard on the appellate record; and the same
being considered, it is the opinion of this court that this appeal should be dismissed.
                        It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court
below for observance.
                        By per curiam opinion.
                        Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
