                         PD-1237-15

       IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                  NO.# 13-13-00327-CR
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

In the Court of Appeals for the Thirteenth District of
                         Texas

                 Court of Appeals of Texas,
                   Corpus Christi-Edinburg
                      No.13–13–00327–CR

               Noel Gonzalez, Appellant,
                           v.
             The State of Texas, Appellee.
 NUMBER 13–13–00327–CR Delivered and filed February 5,
                          2015

  On appeal from the 103rd District Court of Cameron
     County, Texas. Trial Court No.2012-DCR-2380-D

* * * * * * * * * * * * * * * * * * * * * * * * * * * *
     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
* * * * * * * * * * * * * * * * * * * * * * * * * * * *

                             Larry Warner
                             Counsel for Noel Gonzalez
                             3109 Banyan Circle
                             Harlingen, Texas 78550
                             Phone (956)230-0361
                             Email: office@larrywarner.com
                             Texas Bar#20871500;
                             USDC, SDTX 1230;
                             Board Certified, Criminal Law,
    September 22, 2015
                             Texas Board of Legal
                             Specialization(1983)
                             Member of the Bar of the
                             Supreme Court of the United
                             States (1984)



                           Page 1 of 23
Pursuant to TEX.R.APP.P.68.4,Appellant provides       the
following identity of parties and counsel:


             IDENTITY OF PARTIES AND COUNSEL


1.   Noel Gonzalez, Petitioner

2.   Hon. Luis V. Saenz, District Attorney, 964 East
     Harrison; Brownsville, TX 78520
     Attorney at trial and on appeal and on Petition for
     Discretionary Review for the State;

3.   Hon. Noe Robles, 23331 Tamm Ln, Harlingen, TX 78550
     Attorney at trial for Defendant.

4.   Hon. Rene Gonzalez, Assistant Cameron County District
     Attorney, Attorney for Appellant on Appeal.

5.   Hon. Larry Warner, Attorney for Petitioner on
     Petition for Discretionary Review and on appeal, 3109
     Banyan Circle, Harlingen, Texas 78550




                         Page 2 of 23
Pursuant to TEX.R.APP.P.68.4(a), Petitioner provides this
Table of Contents with reference to the pages of the
Petition, indicating the subject of each ground or
question presented for review.

                   TABLE OF CONTENTS
                                                     PAGE

Table of Contents.. . . . . . . . . . . . . . . .   3 - 4

Index of Authorities .. . . . . . . . . . . . . . . .   5

Statement re oral argument .. . . . . . . . . . . . .   6

Statement of the case.. . . . . . . . . . . . . .   7 - 8

Statement of procedural history.. . . . . . . . . . .   9

Grounds for Review. . . . . . . . . . . . . . .   10 - 11

    1. The Court of Appeals decision conflicts with
another Court of Appeals decision on the same issue. The
issue is whether a Court of Appeals should use its
plenary power to reinstate a dismissed appeal. The
decision of the other Court of Appeals is Bomar v. Walls
Regional    Hospital,971    S.W.2d     670(Tex.App.–Waco
1998,pet.gntd,r.o.g.9 S.W.3d 805)

    2. The record is tainted with perjury. The record
shows that the defendant told the judge he had no history
of mental problems. At the hearing on the motion for new
trial, his mother testified that his mental problems and
hospitalizations were lifelong. The Defendant said his
guilty-plea lawyer told him to lie to the judge about
those problems. The cold record shows that he did just
that. The state did not call that guilty-plea lawyer at
the motion for new trial. Communist Party of the United
States     v.     Subversive     Activities      Control
Board,367U.S.1,19(1967)



                        Page 3 of 23
      “Finding that the Party's allegations of
      perjury had not been denied by the Attorney
      General,    and    concluding    that    the
      registration order based on a record
      impugned by a charge of perjurious testimony
      on the part of three witnesses whose
      evidence constituted a not insubstantial
      portion of the Government's case could not
      stand, this Court remanded to the Board ‘to
      make certain that (it) bases its findings
      upon untainted evidence.’ 351 U.S. 115, 125,
      76 S.Ct. 663, 668, 100 L.Ed. 1003.”
      Communist Party of the United States v.
      Subversive        Activities       Control
      Board,367U.S.1,19(1967)

Argument.........................................12 - 18

Certificate of Service............................19 - 20

Appendix...............................................21

Certificate of Compliance..........................22 - 23




                         Page 4 of 23
Pursuant to TEX.R.APP.P.68.4(b), Petitioner provides an
Index of     Authorities, arranged alphabetically and
indicating the pages of the petition where the authorities
are cited.

                  INDEX OF AUTHORITIES

CASES:                                              PAGES

Communist Party of the United States v. Subversive
Activities      Control     Board,      367U.S.1,      19
(1967).......................................3, 6, 10, 14
    An appellate court may remand for investigation
    uncontroverted instances of perjury in the record.

Bomar    v.   Walls    Regional    Hospital,971    S.W.2d
670(Tex.App.–Waco      1998,pet.gntd,r.o.g.9      S.W.3d
805).....................................3, 8, 10, 12, 13
    A Court of Appeals has plenary power
    to reinstate a dismissed appeal.

Midkiff v. Hancock East Texas Sanitation, Inc.,996 S.W.2d
414(Tex.App.–Beaumont 1999,no pet.)...................13
    The matter of plenary jurisdiction is important to the
jurisprudence of the state

Ex Parte Sledge, 391S.W.3d104, 105hn1(Tex.Crim.App.
2013).................................................14
    While we are not unsympathetic to the applicant's
claim, this Court lacks the authority to grant him relief.

Ex parte Ghahremani,332 S.W.3d 470(Tex.Crim. App.
2011).................................................15
    The Court of Criminal Appeals of Texas recently
    granted relief to one whose trial was besmirched by
    perjury.




                         Page 5 of 23
Pursuant to TEX.R.APP.P. 68.4(c), Petitioner includes a
short statement of why oral argument would be helpful.

                    STATEMENT RE ORAL ARGUMENT

      Oral argument would be helpful to the decisional
process because counsel and the Judges of the Court of
Criminal Appeals       could discuss when a Court of Appeals
should use its discretion to reinstate an appeal dismissed
for failure to file a brief, when counsel represented that
he had timely prepared the brief but was mistaken in
believing that it had been filed.
      The   Court   and   Counsel     could   discuss   whether   the
state’s failing to call the lawyer at the hearing on the
motion for new trial to respond to the allegation that
that lawyer told the defendant to lie to the judge about
not having any history of mental problems was the same
conduct     as   the   Attorney      General’s    not   denying   the
Petitioner’s allegations of perjury in Communist Party of
the   United     States   v.   Subversive        Activities   Control
Board,367U.S.1,19(1967). That failure to deny prompted a
remand.




                               Page 6 of 23
Pursuant to TEX.R.APP.P.68.4(d), Petitioner provides a
statement of the case, noting briefly the nature of the
case, and reserving the details of the case for statement
with the pertinent grounds or questions.

                        STATEMENT OF THE CASE
      The nature of the case was a prosecution of Petitioner
for sexual assault on a child, multiple counts. It is now
a review of the action of the Court of Appeals for the
Thirteenth District in failing to reinstate Petitioner’s
appeal.
      Petitioner pleaded guilty and submitted the matter to
the Judge. He had had mental problems. He waived his right
to appeal.
      The Judge found him guilty.            The judge i m p o s e d a
sentence of confinement in the penitentiary.                 Defendant
changed counsel and moved for a new trial, averring that
his “plead-guilty” lawyer had told him to lie to the Judge
and say that he had never had any mental problems. The
evidence at the hearing on the Motion for New Trial from
the defendant’s mother tended to show that he had indeed
had    a     lifelong     history     of     mental    problems      and
hospitalizations. The cold record plainly shows that he
did   tell    the   Judge   that    he   had   not    had   any   mental
problems. The state did not call defendant’s “plead-
guilty” lawyer as a witness at the hearing on the motion
for new trial.
      Petitioner timely filed a Notice of Appeal to the
Court of Appeals for the Thirteenth District of Texas.

                              Page 7 of 23
    The Court of Appeals dismissed Petitioner’s appeal,
holding his waiver of appeal effective.
    Defendant filed a Motion to Reinstate and Brief in
Support, relying on Bomar v. Walls Regional Hospital,971
S.W.2d 670(Tex.App.–Waco 1998,pet.gntd,r.o.g.9 S.W.3d 805)
    The Court of Appeals denied the Motion to Reinstate.
    Petitioner sought and was granted an extension of time
to file this Petition for Discretionary Review.




                         Page 8 of 23
Pursuant to TEX.R.APP.P.68.4(e), Petitioner provides a
Statement of Procedural History.

    STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

    The court of appeals is the Court of Appeals for the
Thirteenth District of Texas.

Re: TEX.R.APP.P.10.5(b)(3)(B), the date of      Court of
Appeals’ opinion is February5. 2015. The decision denying
reinstatement is dated August 19, 2015.

Re: TEX.R.APP.P.10.5(b)(3)(C) the case number in the Court
of Appeals is No. 13-13-00327-CR

Re: TEX.R.APP.P.10.5(b)(3) (D), the date every motion for
rehearing or en banc reconsideration was filed.

    On   July   16,   2015,    Petitioner      filed   a   motion   to

reinstate appeal.     On August 3, 2015, the State requested

the Court to Deny Appellant’s Motion to Reinstate Appeal.

    On July 17,2015, the Court of Appeals, 13th District

Court received Appelant’s Brief.             On July 20, 2015, the

Court requested the state to respond to Appellant’s Motion

to Reinstate Appeal by July 30, 2015.           Response was filed

August 3, 2015.

    On August 19, 2015, Motion to Reinstate Appeal was

denied by the Court.Pursuant to TEX.R.APP.P.68.4(f),
Petitioner states briefly, without argument, the questions
presented for review, expressed in the terms and
circumstances of the case, but without unnecessary detail.


                              Page 9 of 23
                         GROUNDS FOR REVIEW

Grounds for Review. . . . . . . . . . . . . . . . . . .

    1.    The    Court   of   Appeals      decision     conflicts   with

another Court of Appeals decision on the same issue. The

issue is whether a Court of Appeals should use its plenary

power to reinstate a dismissed appeal. The decision of the

other    Court    of   Appeals    is     Bomar     v.   Walls   Regional

Hospital,971              S.W.2d               670(Tex.App.–Waco

1998,pet.gntd,r.o.g.9 S.W.3d 805)

    2.    The record is tainted with perjury. The record

shows that the defendant told the judge he had no history

of mental problems. At the hearing on the motion for new

trial, his mother testified that his mental problems and

hospitalizations were lifelong. The Defendant said his

guilty-plea lawyer told him to lie to the judge about

those problems. The cold record shows that he did just

that. The state did not call that guilty-plea lawyer at

the motion for new trial. Communist Party of the United

States       v.        Subversive              Activities       Control

Board,367U.S.1,19(1967)

                               Page 10 of 23
“Finding that the Party's allegations of
perjury had not been denied by the Attorney
General,    and    concluding    that    the
registration order based on a record
impugned by a charge of perjurious testimony
on the part of three witnesses whose
evidence constituted a not insubstantial
portion of the Government's case could not
stand, this Court remanded to the Board ‘to
make certain that (it) bases its findings
upon untainted evidence.’ 351 U.S. 115, 125,
76 S.Ct. 663, 668, 100 L.Ed. 1003.”
Communist Party of the United States v.
Subversive        Activities       Control
Board,367U.S.1,19(1967)




                  Page 11 of 23
Pursuant to TEX.R.APP.P.68.4(g), Petitioner provides a
direct and concise argument, with supporting authorities,
amplifying the reasons for granting review.

                                ARGUMENT

    1.    The    Court    of   Appeals      decision   conflicts   with

another Court of Appeals decision on the same issue. The

issue is whether a Court of Appeals should use its plenary

power to reinstate a dismissed appeal. The decision of the

other    Court    of     Appeals    is    Bomar   v.   Walls   Regional

Hospital,971                S.W.2d              670(Tex.App.–Waco

1998,pet.gntd,r.o.g.9 S.W.3d 805)

    The appellate lawyer did not file the brief on time.

    The Court of Appeals dismissed the appeal, holding

that Appellant had waived his right to appeal in a plea

bargain.

    The appellate lawyer tendered a brief on the merits

as well as a motion requesting that the Court of Appeals

use its plenary power to reinstate the appeal. He said

that he had timely prepared the brief but was mistaken in

thinking that it had indeed been filed. The brief on the

merits assailed Appellant’s mental competence to execute

an effective waiver; it also alleged that the lawyer who

                                Page 12 of 23
had Appellant plead guilty had told Appellant to lie to

the Judge and say that Appellant had no history of mental

problems. Appellant’s mother testified at the hearing on

the motion for new trial that Appellant had indeed had a

lengthy history of mental problems and hospitalizations.

       The appellate lawyer cited the Court of Appeals to

Bomar      v.      Walls      Regional           Hospital,971       S.W.2d

670(Tex.App.–Waco 1998,pet.gntd,r.o.g.9 S.W.3d 805), in

which    the    Tenth   Court    of    Appeals      held    a    motion   to

reinstate untimely but reinstated the appeal nonetheless,

and asked the Thirteenth Court of Appeals to use its

plenary power to reinstate the appeal. It did not.

       The Court of Criminal Appeals of Texas should grant

this petition and should allow full briefing to determine

that    the     Court   of   Appeals      did     indeed    have   plenary

jurisdiction      to    reinstate     the       appeal.    The   matter   of

plenary jurisdiction is important to the jurisprudence of

the state, in addition to the formal reason stated in this

petition.       In addition to Bomar, the matter arose in

Midkiff v. Hancock East Texas Sanitation, Inc.,996 S.W.2d

414(Tex.App.–Beaumont 1999,no pet.)
                                Page 13 of 23
    This Court recently noted lack of jurisdiction in a

post-judgment proceeding. “While we are not unsympathetic

to the applicant's claim, this Court lacks the authority

to grant him relief.”       Ex Parte Sledge, 391S.W.3d104,

105hn1(Tex.Crim.App.2013)

    The   Court   of   Criminal    Appeals     should   grant   this

petition to determine that the Court of Appeals did indeed

have plenary jurisdiction to reinstate the appeal.

    2. The record is tainted with perjury. The record

shows that the defendant told the judge he had no history

of mental problems. At the hearing on the motion for new

trial, his mother testified that his mental problems and

hospitalizations were lifelong. The Defendant said his

guilty-plea lawyer told him to lie to the judge about

those problems. The cold record shows that he did just

that. The state did not call that guilty-plea lawyer at

the motion for new trial. Communist Party of the United

States     v.      Subversive              Activities     Control

Board,367U.S.1,19(1967)

      “Finding that the Party's allegations of
      perjury had not been denied by the Attorney

                           Page 14 of 23
      General, and concluding that the registration
      order based on a record impugned by a charge
      of perjurious testimony on the part of three
      witnesses whose evidence constituted a not
      insubstantial portion of the Government's
      case could not stand, this Court remanded to
      the Board ‘to make certain that (it) bases
      its findings upon untainted evidence.’ 351
      U.S. 115, 125, 76 S.Ct. 663, 668, 100 L.Ed.
      1003.” Communist Party of the United States
      v.    Subversive      Activities      Control
      Board,367U.S.1,19(1967)


    The   Court   of   Criminal    Appeals   of   Texas   recently

granted   relief to one whose trial was besmirched by

perjury. 332 S.W.3d 470(Tex.Crim. App.2011)

    Here, the defendant himself commits aggravated perjury

at the instance of his counsel, telling the Judge that he

has no history of mental problems or hospitalizations; the

uncountered, uncontradicted evidence at the motion for new

trial showed that he had a lifelong history of both

problems and hospitalizations.

    Normally we do not let people profit from their own

wrongs. Aggravated perjury is a crime against the justice

system itself.    But here it        was at the instance of an

officer of the Court, the initial defense lawyer, who told

the defendant to lie to the Judge and say that he did not

                           Page 15 of 23
have mental problems or hospitalizations when he did in

fact have those problems and hospitalizations. Here, the

defendant, according to the testimony at the motion for

new   trial,      had     a    history        of      mental      problems   and

hospitalizations.

      So, the testimony about the mental problems and the

allegation       that   the     “plead        guilty”       lawyer    told   the

defendant to lie to the judge about whether the defendant

ever had any mental problems or hospitalizations, combine

to take this case out of the realm of those in which we do

not let people profit from their own wrongs...here the

defendant’s lying to the judge about whether he had mental

problems or not.

      If he was incompetent at the time of the plea, he was

not responsible for making that false statement to the

judge.

      If he was competent but followed the advice of counsel

to lie to the judge, the system must react to its officer

impelling perjury.

      If   the    Judge       had    known          about   the    history   and

hospitalizations at the plea, she should have at least

                                    Page 16 of 23
ordered an examination to be sure of the defendant’s

competence. Hearing from the mother at the motion for new

trial about defendant’s history and hospitalizations, the

Judge should have granted a new trial.

    The Court of Appeals should have determined that it

had plenary jurisdiction to reinstate the dismissed the

appeal, considering the seriousness of the allegation of

perjury and the explanation that the lawyer had prepared

the brief and was mistaken in thinking that the brief had

been filed, when it had not been filed.

             CONCLUSION AND REQUEST FOR RELIEF

    The    Court    of   Criminal    Appeals      should    grant   this

Petition for Discretionary Review, considering that the

petition    deals    with    plenary         jurisdiction    and    with

allegations of a record tainted by perjury.

    The    Court    of   Criminal    Appeals      should    allow   full

briefing.

    The Court of Criminal Appeals should remand for an

investigation of the averments of perjury, given that the

prosecutor did not call the defense lawyer, who, said the

defendant in the motion for new trial, told the defendant

                             Page 17 of 23
to lie to the judge and say that the defendant did not

have a history of mental problems and hospitalizations,

when, in fact, he did.

    The Court of Criminal Appeals should require a new

trial.

                       Respectfully submitted
                       September 18, 2015




                 By:
                       Larry Warner
                       Attorney for Noel Gonzalez
                       3109 Banyan Drive
                       Harlingen, Texas 78550
                       Office: 956 230 0361
                       Facsimile: 1-866-408-1968
                       Email: office@larrywarner.com
                       State Bar of TX 20871500;
                       USDC, SDTX 1230(1981)
                       Board Certified, Criminal Law,
                       Texas Board Legal
                       Specialization(1983)
                       Member of the Bar of the
                       Supreme Court of the United
                       States(1984)




                         Page 18 of 23
        IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                   NO.# 13-13-00327-CR
 ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

 In the Court of Appeals for the Thirteenth District of
                          Texas

               Court of Appeals of Texas,
                 Corpus Christi-Edinburg
                    No.13–13–00327–CR

               Noel Gonzalez, Appellant,
                           v.
             The State of Texas, Appellee.
 NUMBER 13–13–00327–CR Delivered and filed February 5,
                          2015

   On appeal from the 103rd District Court of Cameron
      County, Texas. Trial Court No.2012-DCR-2380-D

* * * * * * * * * * * * * * * * * * * * * * * * * * * *
                 CERTIFICATE OF SERVICE
* * * * * * * * * * * * * * * * * * * * * * * * * * * *

    This is to certify that a true and correct copy of the
foregoing APPELLANT’S PETITION FOR DISCRETIONARY REVIEW,
was sent Electronically Via EFC to the following counsel
of record on September 10, 2015, the day it was filed.

    LUIS V. SAENZ, Cameron County District Attorney’s
Office, 964 E. Harrison, Brownsville, Texas 78520. Phone
(956)    544-0849.    Fax    (956)   544-0869.    Email:
district.attorney@co.cameron.tx.us

                            LAW OFFICE OF LARRY WARNER
                            RESPECTFULLY SUBMITTED
                            September 18, 2015


                      By:
                        Page 19 of 23
  Larry Warner,
  Counsel for Noel Gonzalez
  3109 Banyan Circle
  Harlingen, Texas 78550
  Phone: (956)230-0361
  Facsimile: (866)408-1968
  office@larrywarner.com
  State Bar of TX 20871500;
  USDC,SDTX 1230(1981)
  Board Certified, Criminal Law,
  Texas Board Legal
  Specialization(1983)
  Member of the Bar of the
  Supreme Court of the
  United States(1984)




Page 20 of 23
        IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                   NO.# 13-13-00327-CR
 ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

 In the Court of Appeals for the Thirteenth District of
                          Texas

               Court of Appeals of Texas,
                 Corpus Christi-Edinburg
                    No.13–13–00327–CR

               Noel Gonzalez, Appellant,
                           v.
             The State of Texas, Appellee.
 NUMBER 13–13–00327–CR Delivered and filed February 5,
                          2015

   On appeal from the 103rd District Court of Cameron
      County, Texas. Trial Court No.2012-DCR-2380-D


********************************************************
                        APPENDIX
********************************************************

                          Order

    A copy of the opinion of the Court of Appeals for
the Thirteenth District is attached.




                        Page 21 of 23
        IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                   NO.# 13-13-00327-CR
 ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

 In the Court of Appeals for the Thirteenth District of
                          Texas

                 Court of Appeals of Texas,
                   Corpus Christi-Edinburg
                      No.13–13–00327–CR

               Noel Gonzalez, Appellant,
                           v.
             The State of Texas, Appellee.
 NUMBER 13–13–00327–CR Delivered and filed February 5,
                          2015

     On appeal from the 103rd District Court of Cameron
        County, Texas. Trial Court No.2012-DCR-2380-D

* * * * * * * * * * * * * * * * * * * * * * * * * * * *
               CERTIFICATE OF COMPLIANCE
* * * * * * * * * * * * * * * * * * * * * * * * * * * *

1.    This brief complies with the type-volume limitation
      of FED. R. APP. P. 32(a)(7)(B) because: this brief
      contains 3368 words, excluding the parts of the
      brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

2.    This brief uses a monospaced typeface and contains
      695 lines of text, excluding the parts of the brief
      exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

3.    This brief complies with the typeface requirements
      of FED. R. APP. P. 32(a)(5) and the type style
      requirements of FED. R. APP. P. 32(a)(6) because:
      this brief has been prepared in a proportionally
      spaced typeface using Word Perfect X6 in Courier

                          Page 22 of 23
New in font size 14pt.


The undersigned understands a material
misrepresentation in completing this certificate,
or circumvention of the type-volume limits in 5th
CIR. R. 32.2.7, may result in the court’s striking
the brief and imposing sanctions against the person
signing the brief.

                       LAW OFFICE OF LARRY WARNER
                       RESPECTFULLY SUBMITTED
                       September 18, 2015

                 By:




                       Larry Warner,
                       Counsel for Noel Gonzalez
                       3109 Banyan Circle
                       Harlingen, Texas 78550
                       Phone: (956)230-0361
                       Facsimile: (866)408-1968
                       office@larrywarner.com
                       State Bar of Tx 20871500;
                       USDC,SDTX 1230(1981)
                       Board Certified, Criminal Law,
                       Texas Board Legal
                       Specialization(1983)
                       Member of the Bar of the
                       Supreme Court of the
                       United States(1984)




                   Page 23 of 23
                              NUMBER 13-13-00327-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG
____________________________________________________________

NOEL GONZALEZ,                                                                   Appellant,

                                              v.

THE STATE OF TEXAS,                                 Appellee.
____________________________________________________________

             On appeal from the 103rd District Court
                  of Cameron County, Texas.
____________________________________________________________

                           MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Rodriguez and Garza
                   Memorandum Opinion Per Curiam
       Appellant, Noel Gonzalez, filed a notice of appeal in this Court on June 14, 2013.

On June 27, 2013, the trial court certified that appellant waived his right to appeal. See

TEX. R. APP. P. 25.2(a)(2). On June 28, 2013, this Court notified appellant’s prior counsel

of the trial court’s certification and ordered counsel to: (1) review the record; (2) determine

whether appellant has a right to appeal; and (3) forward to this Court by letter, counsel’s
findings as to whether appellant has a right to appeal and/or advise this Court as to the

existence of any amended certification. We further ordered counsel to file a motion with

this Court within thirty days of receipt of the notice, “identifying and explaining substantive

reasons why appellant has a right to appeal” if appellant’s counsel determined that

appellant had the right to appeal. See TEX. R. APP. P. 44.3; 44.4. No response was

received from appellant’s counsel. On September 3, 2013, we abated the appeal and

remanded the case to the trial court for a hearing to determine why counsel had failed to

comply with this Court’s June 28, 2013 order (the “44.3 Order”). On November 7, 2013,

appellant’s counsel filed “Counsel’s Response to Order of the [Thirteenth] Court of

Appeals Regarding Abatement” stating that counsel wished to continue representing

appellant and that counsel could file a brief within sixty days. Counsel’s response does

not establish that the trial court’s certification currently on file is incorrect or that appellant

otherwise has a right to appeal.

       Following the abatement, on November 7, 2013, new appellate counsel filed an

appearance of counsel for appellant, a response to the abatement order, and a motion

for leave to file a supplemental response once the record is complete, specifically the

reporter’s record of the hearing on the motion for new trial. Again, this response does not

establish that the trial court’s certification currently on file is incorrect or that appellant

otherwise has a right to appeal.

       On February 14, 2014, the reporter’s record was filed and the cause reinstated.

The Court granted appellant’s motion for extension of time to comply with the 44.3 Order

by filing a supplemental response by March 24, 2014. No response to the Court’s 44.3

Order was received. Thus, on April 15, 2014, we abated the case and remanded the



                                                    2
case to the trial court for a hearing to determine why counsel has failed to comply with

this Court’s 44.3 Order.

        On June 27, 2014, the trial court held a hearing. Counsel’s statements at the

hearing do not establish that the certification currently on file with this Court is incorrect

or that appellant otherwise has a right to appeal.1 On September 4, 2014, we reinstated

the case and gave counsel thirty days to respond to our 44.3 Order and to explain why

the trial court’s certification is incorrect, if it is. Counsel requested that we extend the due

date until October 13, 2014, and we granted that request. Counsel has not filed a

response.

        The Texas Rules of Appellate Procedure provide that an appeal must be dismissed

if the trial court’s certification does not show that the defendant has the right to appeal.

TEX. R. APP. P. 25.2(d); see id. R. 37.1, 44.3, 44.4. Moreover, we have reviewed the

record and there is nothing showing that the trial court’s certification currently on file is

incorrect or that appellant otherwise has the right to appeal.2                      See TEX. R APP. P.

25.2(a)(2) (providing that a defendant pleading guilty pursuant to a plea agreement has

a right to appeal only matters raised by written motion filed and ruled on before trial if the

punishment imposed by the trial court does not exceed the punishment recommended by


        1  Instead, at the hearing, counsel argued that the record was incomplete; therefore, he could not
determine whether appellant had a right to appeal and could not respond to this Court’s 44.3 Order. The
trial court stated that appellant had no right to appeal because he pleaded guilty pursuant to a plea
agreement with the State. However, the trial court granted counsel’s request for a complete record.
        2 Pursuant to a plea agreement with the State, appellant pleaded guilty to three counts of
aggravated sexual assault of a child. The trial court followed the State’s recommendation on punishment
and assessed the agreed-upon twelve-year sentence. At the plea hearing, the trial court admonished
appellant orally and in writing that he was waiving his right to an appeal by pleading guilty.

        Although appellant filed several pretrial motions, the trial court did not rule on any of those motions
before appellant pleaded guilty. Also, at a post-trial hearing, the trial court stated that it has not and would
not grant appellant permission to appeal this case.


                                                           3
the State and agreed upon by the defendant); Chavez v. State, 183 S.W.3d 675, 680

(Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to ascertain whether

an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss

a prohibited appeal without further action, regardless of the basis for the appeal.”); Cooper

v. State, 45 S.W.3d 77, 77 (Tex. Crim. App. 2001) (concluding that rule 25.2(b) forbids a

plea bargaining defendant from appealing the voluntariness of his plea); Escochea v.

State, 139 S.W.3d 67, 75 (Tex. App.—Corpus Christi 2004, no pet.) (stating that the

appellant “waived any appeal of the voluntariness of his plea [and that he waived any

claim of ineffective assistance] when he pleaded guilty to a felony pursuant to an agreed

punishment recommendation”). Accordingly, we must DISMISS this appeal.



                                                         PER CURIAM



Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of February, 2015.




                                                 4
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  Envelope 6990268
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             09/18/2015 02:39:26 PM
   Case Number                            PD-1237-15
   Case Description
   Assigned to Judge
   Attorney                               LARRY WARNER
   Firm Name                              LAW OFFICE OF LARRY WARNER
   Filed By                               LARRY WARNER
   Filer Type                             Not Applicable
   Fees
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   Transaction Response
   Transaction ID                         11456456
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   Petition for Discretionary Review
   Filing Type                                                               EFileAndServe
   Filing Code                                                               Petition for Discretionary Review
                                                                             APPELLANT'S PETITION FOR DISCRETIONARY
   Filing Description
                                                                             REVIEW
   Reference Number                                                          NOEL GONZALEZ
   Comments
   Status                                               Rejected
   Fees
   Court Fee                                            $0.00
   Service Fee                                          $0.00
   Rejection Information
   Rejection Time       Rejection Comment
   Reason
             09/22/2015 This petition was due in the Court of Criminal Appeals on March 9, 2015. The 13th


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Envelope Details

   Other   01:33:15              Court of Appeals issued mandate in this case on April 27, 2015. Your petition is
           PM                    untimely; it will be received and scanned, but no action will be taken on this matter.
   Documents
   Lead Document                          FINAL PDR.pdf                                                     [Original]


   eService Details
                                                                                                                               Date/Time
   Name/Email                                      Firm                     Service Type           Status       Served
                                                                                                                               Opened
                                      DISTRICT'S
   LUIS V, SAENZ
   district.attorney@co.cameron.tx.us ATTORNEY'S                            EServe                 Sent         Yes            Not Opened
                                      OFFICE




   Appendix
   Filing Type                                                               EFileAndServe
   Filing Code                                                               Appendix
   Filing Description                                                        EXHIBIT A
   Reference Number                                                          NOEL GONZALEZ
   Comments
   Status                                                                    Rejected
   Fees
   Court Fee                                                                 $0.00
   Service Fee                                                               $0.00
   Rejection Information
   Rejection Reason                        Time                                                      Rejection Comment
   Other                                   09/22/2015 01:33:15 PM                                    Same as the petition.
   Documents
   Lead Document                          MEMEORANDUM & OPINION -- 020515.pdf                                                    [Original]


   eService Details
                                                                                                                               Date/Time
   Name/Email                                      Firm                     Service Type           Status       Served
                                                                                                                               Opened
                                      DISTRICT'S
   LUIS V, SAENZ
   district.attorney@co.cameron.tx.us ATTORNEY'S                            EServe                 Sent         Yes            Not Opened
                                      OFFICE




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