                                                                                    ACCEPTED
                                                                                14-15-00344-CR
                                                                FOURTEENTH COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          12/7/2015 11:15:32 AM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

              Nos. 14-15-00344-CR & 14-15-00345-CR
                                   In the                       FILED IN
                              Court of Appeals           14th COURT OF APPEALS
                                                            HOUSTON, TEXAS
                                  For the
                                                         12/7/2015 11:15:32 AM
                         Fourteenth District of Texas
                                                         CHRISTOPHER A. PRINE
                                At Houston                        Clerk

                          ♦
                         Nos. 1412474 & 1412475
                         In the 262nd District Court
                           Of Harris County, Texas
                          ♦
                           Nayajah Niya Davis
                                Appellant
                                   v.
                           The State of Texas
                                Appellee
                     ♦
                   State’s Motion to Dismiss
               Based on Waiver of Right of Appeal
                       ♦

      The record in this case shows that the appellant knowingly waived

her right of appeal after the trial on guilt was concluded. She developed

no post-trial record that would support a finding that this waiver was

not knowing, voluntary, and intelligent. Accordingly, this Court should

dismiss these appeals.




                                      1
                             Statement of the Case

       The appellant was charged with two counts of assault of a public

servant. (1 CR 19; 2 CR 19).1 She entered a plea of not guilty, but a jury

found her guilty as charged for both offenses. (1 CR 224, 226; 2 CR 196,

199). After the guilty verdict, the appellant entered into an agreement

with the State regarding punishment. (13 RR 4-5). In accord with that

agreement the trial court assessed punishment at concurrent sentences

5 years’ confinement, but suspended the sentences and ordered the

appellant to serve 5 years’ community supervision. (1 CR 226, 228-31; 2

CR 199, 201-204). As part of the agreement, the appellant waived her

right of appeal. (13 RR 8-10, 18, 21; 1 CR 212).


       The appellant’s waiver of her right of appeal is binding.

       The record in this case is very explicit that the appellant waived

her right to appeal after the trial on guilt had concluded. (13 RR 8-10,

18, 21). The Court of Criminal Appeals has held that where a defendant,

after having been found guilty, waives her right of appeal as part of an

agreement with the State regarding punishment, that waiver is binding.



1The State will refer to the two clerk’s records in these cases as though they were
sequential volumes. Thus the record for cause 141212474 will be 1 CR, and the
record for 1412475 will be 2 CR.
                                          2
See Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (declining

to allow defendant to “renege” on agreement).

      There might be circumstances where the interests of justice would

weigh against enforcing such a waiver, but this case involves none of

those. The only matters the appellant raises on appeal relate to matters

of which she was aware prior to waiving her right of appeal. At one point

she references a motion for new trial, but there is no motion for new

trial in either clerk’s record, and the appellant’s brief does not reference

any new evidence adduced as a result of any motion for new trial.

      “[An] appeal must be dismissed if a certification that shows the

defendant has the right of appeal has not been made part of the

record .…” TEX. R. APP. P. 25.2(d). There is no such certification in this

case; one record contains a certification that the appellant waived her

right of appeal, and the other record contains no certification at all,

though it is apparent that the appellant’s waiver would apply to both

causes. (1 CR 212 (certification that appellant has waived her right of

appeal); 13 RR 18 (trial court admonishing appellant that “You've given

up any right that you have to appeal either one of these convictions; you

got that?”; defendant responding: “Yes.”)).



                                     3
                               Prayer

     The State asks this Court to dismiss this appeal because the

appellant bargained away her right of appeal in return for the State

agreeing to her receiving community supervision instead of time in the

penitentiary. This Court should dismiss this appeal to enforce that

bargain.



                                        Respectfully submitted,


                                        /s/ C.A. Morgan
                                        CLINTON A. MORGAN
                                        Assistant District Attorney
                                        Harris County, Texas
                                        1201 Franklin, Suite 600
                                        Houston, Texas 77002-1923
                                        (713) 755-5826
                                        morgan_clinton@dao.hctx.net
                                        TBC No. 24071454




                                  4
                          Certificate of Service

      I certify that I have requested that efile.txcourts.gov electronically

serve a copy of this motion to:

      J. Paxton Adams
      huntsvilleatty@att.net


                                            /s/ C.A. Morgan
                                            CLINTON A. MORGAN
                                            Assistant District Attorney
                                            Harris County, Texas
                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002-1923
                                            (713) 755-5826
                                            morgan_clinton@dao.hctx.net
                                            TBC No. 24071454

Date: December 7, 2015




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