                                                                                          PD-0574-15
                              PD-0574-15                             COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                     Transmitted 6/1/2015 4:18:46 PM
                                                                       Accepted 6/1/2015 4:26:07 PM
                                                                                      ABEL ACOSTA
                    OFFICE OF THE DISTRICT ATTORNEY                                           CLERK


JARVIS PARSONS                                                    300 EAST 26TH STREET
District Attorney                                                 SUITE 310
                                                                  BRYAN, TEXAS 77803

                                                                           979/361-4320
                                                                      FAX: 979/361-4368
                            BRAZOS COUNTY, TEXAS

                                     June 1, 2015

Honorable Abel Acosta
Clerk
Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711

       RE:     George Riley Williams, Jr. v. The State of Texas
               Court of Criminal Appeals case no. PD-0574-15
               Court of Appeals case no. 10-15-00028-CR

Dear Mr. Acosta:

      Enclosed please find an original of the State’s Reply to Appellant’s Petition
for Discretionary Review in the above referenced matter. Ten copies will be mailed
pursuant to Tex. R. App. P. 9.3(b). I am forwarding a copy of same to the Attorney
for Appellant and to the State Prosecuting Attorney.

                                              Yours truly,


           June 1, 2015
                                              /s/   Jessica Escue
                                              Jessica Escue
                                              Assistant District Attorney
                                              Brazos County, Texas

cc:    Lane D. Thibodeaux, Attorney for Appellant
       State Prosecuting Attorney
                       CASE NO. PD-0574-15

                            IN THE
                  COURT OF CRIMINAL APPEALS
                        AUSTIN, TEXAS

__________________________________________________________________

                  GEORGE RILEY WILLIAMS, JR.,
                                     Appellant

                               VS.

                       THE STATE OF TEXAS
__________________________________________________________________

               On Appellant’s Petition for Discretionary Review
        from the Tenth Court of Appeals in case no. 10-15-00028-CR.
          Affirming the conviction in cause no. 14-000978-CRF-272
              in the 85th District Court of Brazos County, Texas.
__________________________________________________________________

                 STATE’S REPLY TO APPELLANT’S
              PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________


                                     JARVIS PARSONS
                                     DISTRICT ATTORNEY
                                     BRAZOS COUNTY, TEXAS

                                     Jessica Escue
                                     Assistant District Attorney
                                     State Bar Number 24059726
                                     300 E. 26th Street, Suite 310
                                     Bryan, Texas 77803
                                     (979) 361-4320
                                     Fax: (979) 361-4368
                                     jescue@brazoscountytx.gov
                                          TABLE OF CONTENTS

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

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

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

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

STATE’S REPLY TO APPELLANT’S GROUND FOR REVIEW ..........................

Appellant’s petition should be refused where:

1.       This Court has already considered and rejected Appellant’s issue. See
         Lungren v. State, 434 S.W.3d 594, 598-99 (notice of appeal was not
         effective because defendant entered into a binding appellate waiver as part
         of his plea bargain agreement); Blanco v. State, 18 S.W.3d 218, 219-20
         (Tex. Crim. App. 2000).

2.       Appellant has not demonstrated that the court of appeals’ opinion is in
         conflict with any established precedent of law. See Taylor v. State, 55
         S.W.3d 584, 585 (Tex. Crim. App. 2001).

PRAYER ......................................................................................................................

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

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 ............................




                                                              i
                                      INDEX OF AUTHORITIES

CASES

Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000) ...............................

Jacobo-Salas v. State, No. 01-09-00899-CR, 2010 WL 2133939 at *1-*2 (Tex.
App.—Houston[1st Dist.] May 27, 2010, no pet.) ....................................................... 4

Jenkins v. State, No. 01-00-01187-CR, 2001 WL 783698 at *1 (Tex. App.—
Houston[1st Dist.] 2001, pet. ref’d) ..............................................................................

Lungren v. State, 434 S.W.3d 594, 598-99 ..................................................................

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

Taylor v. State, 55 S.W.3d 584, 585 (Tex. Crim. App. 2001) .....................................

RULES

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




                                                           ii
                             CASE NO. PD-0574-15

                                 IN THE
                       COURT OF CRIMINAL APPEALS
                             AUSTIN, TEXAS

__________________________________________________________________

                       GEORGE RILEY WILLIAMS, JR.,
                                          Appellant

                                       VS.

                       THE STATE OF TEXAS
__________________________________________________________________

               On Appellant’s Petition for Discretionary Review
        from the Tenth Court of Appeals in case no. 10-15-00028-CR.
          Affirming the conviction in cause no. 14-000978-CRF-272
              in the 85th District Court of Brazos County, Texas.
__________________________________________________________________

                 STATE’S REPLY TO APPELLANT’S
              PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      COMES NOW, the State of Texas, by and through its District Attorney, and

files this brief in compliance with Rule 68, Texas Rules of Appellate Procedure, in

response to Appellant’s ground for review.

              STATEMENT REGARDING ORAL ARGUMENT

      The State requests oral argument only if granted to Appellant.




                                         1
                         STATEMENT OF THE CASE

      Appellant was indicted for the felony offense of Evading Arrest or Detention

with a Vehicle, which was enhanced to habitual offender status with two prior

convictions. (CR 6). Appellant pled not guilty to the charge on November 12,

2014, at the beginning of his jury trial. (3 RR 73). The jury found Appellant guilty

of Evading Arrest as alleged in the indictment. (4 RR 154). Before punishment

began, Appellant and the State reached an agreement on punishment, whereby

Appellant pled true to the enhancement paragraph and waived his appellate rights,

and the State agreed to a punishment of 30 years. (CR 36; 5 RR 4-12).

                 STATEMENT OF PROCEDURAL HISTORY

      The Tenth Court of Appeals dismissed Appellant’s appeal on March 19,

2015 on the grounds that the certificate of appeal indicated that Appellant waived

his appellate rights. Appellant filed a Motion for Rehearing on March 24, 2015.

The Court of Appeals asked for a response from the State, which was filed on

April 15, 2015. Appellant’s Motion for Rehearing was denied on April 22, 2015.

Appellant filed his petition for discretionary review on May 15, 2015. The State

has until June 1, 2015 to respond to Appellant’s petition for discretionary review.




                                          2
                  APPELLANT’S GROUNDS FOR REVIEW

      Whether waiver of right to appeal, executed at the punishment
      stage of trial as part of a plea bargain agreement, waives appeal of
      later matters raised and ruled on at the Motion for New Trial
      Stage.
                                 STATE’S REPLY

      Appellant’s petition should be refused where:

1.    This Court has already considered and rejected Appellant’s issue. See
      Lungren v. State, 434 S.W.3d 594, 598-99 (notice of appeal was not
      effective because defendant entered into a binding appellate waiver as part
      of his plea bargain agreement); Blanco v. State, 18 S.W.3d 218, 219-20
      (Tex. Crim. App. 2000).

2.    Appellant has not demonstrated that the court of appeals’ opinion is in
      conflict with any established precedent of law. See Taylor v. State, 55
      S.W.3d 584, 585 (Tex. Crim. App. 2001).

Discussion

      Appellant argues that his issue – Whether a defendant can appeal the trial

court’s denial of his motion for new trial when he entered into a binding agreement

waiving appeal – is an issue of first impression for this Court. (Petition at 1).

However, this Court has already considered and rejected Appellant’s argument.

See Lungren, 434 S.W.3d at 598-99. Furthermore, review to this Court should not

be granted where Appellant has not demonstrated that the court of appeals’ opinion

is in conflict with any established precedent of law. See Taylor v. State, 55 S.W.3d

584, 585 (Tex. Crim. App. 2001).

      In general, a defendant that voluntarily enters into a plea agreement may


                                         3
only appeal: (1) matters raised by a written motion filed and ruled on before trial or

(2) after getting the trial court’s permission to appeal. TEX. R. APP. P. 25.2(a).

However, if a defendant as part of the plea-bargain process waives his right to

appeal, the court of appeals loses any jurisdiction to consider the appeal.

Lundgren, 434 S.W.3d at 598-99; Jacobo-Salas v. State, No. 01-09-00899-CR,

2010 WL 2133939 at *1-*2 (Tex. App.—Houston[1st Dist.] May 27, 2010, no pet.)

(not designated for publication) (because the defendant waived his appeal as part

of his agreement to a punishment cap, the court of appeals was without jurisdiction

to consider any appellate issue – including his complaints about the motion for new

trial – on appeal); Jenkins v. State, No. 01-00-01187-CR, 2001 WL 783698 at *1

(Tex. App.—Houston[1st Dist.] 2001, pet. ref’d) (not designated for publication)

(the court of appeals is without jurisdiction to consider the defendant’s claims that

his plea was involuntary, his counsel was ineffective, or that the trial court erred in

denying his motion for new trial, as the record demonstrated that the defendant

waived his right to appeal as part of his plea bargain, and the trial court did not

give the defendant permission to appeal).

      Like Lundgren, Jacobo-Salas, and Jenkins the record reveals that Appellant

waived his right to appeal his case as part of his binding plea bargain agreement.

Before Appellant’s plea was entered, he was repeatedly admonished about the

effect of his plea and the fact that he would be giving up his right to appeal:


                                            4
THE COURT: All right. Raise your right hand, Mr. Williams.

      (Defendant sworn.)

THE COURT: You're George Williams, Jr.; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Williams, you are the same George Riley
Williams, Jr. who the jury found guilty of the charge yesterday,
evading arrest or detention with a vehicle; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Now, I understand you have reached a plea
bargain on punishment?

THE DEFENDANT: Yes, sir.

THE COURT: All right. And, first of all, let me go over with you
these enhancement paragraphs. You know what the indictment is
saying with regard to two prior convictions of penitentiary offenses?

THE DEFENDANT: Yes, sir.

MR. BARRON: We just went -- went over that again.
THE COURT: All right. It's saying on 13 January 1987 in Cause
Number 13404 in the 82nd District Court of Robertson County,
Texas, you were convicted of a felony offense of possession of a
controlled substance. They're saying that's the day you were convicted
of that.

THE DEFENDANT: Yes, sir.

THE COURT: Is that true or not true?

THE DEFENDANT: That's true.

THE COURT: Okay. Furthermore, in Paragraph 2 of the


                                  5
Enhancement Section, it says in Cause Number 13404, the felony
offense of possession of a controlled substance with intent to deliver,
you were convicted on 19 June 2007 in this very court, the 272nd,
in Cause Number 06-05539.

Do you know what that's talking about?

THE DEFENDANT: Yes, sir, I do.

THE COURT: And is that true or not true?

THE DEFENDANT: It is true.

THE COURT: Okay. Now, you understand that you have a right to go
ahead and go through a punishment phase with me and have me assess
your punishment and preserve your right to appeal.

THE DEFENDANT: I understand that.

THE COURT: Okay. And you understand, as I do, that you had some
pretty good points you raised through your attorneys during the
guilt/innocence phase on appeal.

THE DEFENDANT: Yes.

THE COURT: Okay. And, particularly, with regard to the entry of
your home and the touching of your car and those circumstances out
there where your mother was present when the officer entered. You
know, you're giving up your right to complain about those points of
appeal.

THE DEFENDANT: Yes.

THE COURT: And although I thought I was right when I ruled
against you on that, an appellate court might not agree with me.
You're giving up a chance to find out about that.
      Do you understand that?

THE DEFENDANT: I do.


                                   6
THE COURT: Is that what you want to do?

THE DEFENDANT: I'm going to go ahead and give up that right.

MR. BARRON: Judge, I've also explained to him the issues that we
raised and the fact that he testified might waive some of those issues.

THE COURT: I understand that has a bearing on that. I hadn't thought
about that; but, in any event, you may get over there to prison and
start listening to some of those legal experts inside the bars; and – and
they may tell you, "What in the world? Why did you plead? Why did
you reach a plea bargain? You should have appealed."

THE DEFENDANT: Yes, that's a possibility.

THE COURT: So, you know, they're going to be able to talk very
influentially and convince you that you were wrong today when you
did this. So, I'm telling you ahead of time what they're going to tell
you.

THE DEFENDANT: I pretty much know that.

THE COURT: Okay. You've been over there before. So, you know
how that goes, don't you?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. So, knowing all that, you still want to stay with
your plea bargain here?

THE DEFENDANT: Yes, sir.

THE COURT: And are you satisfied with what your attorneys have
done?

THE DEFENDANT: Yes.

THE COURT: You have any complaints about the way the system has


                                    7
treated you to this point?

THE DEFENDANT: No, I don't.

THE COURT: Okay.

MR. BARRON: And just for the record, Your Honor, I had told him
that in a punishment hearing, he's looking at a punishment range of 25
years to life if the priors were proven.

THE COURT: Uh-huh.

MR. GOSS: And we do have the prior judgments present here in the
courtroom with fingerprints and our fingerprint expert ready to prove
up those.

THE COURT: Okay. So, you know, the State's going to have their
side of the case, too, in punishment; and that's something to think
about also. It's not all just points that you're giving up. It's you're
avoiding some things that could be bad.

THE DEFENDANT: Yes.

THE COURT: Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. You're also waiving your right to put on
witnesses at the punishment phase and to have me hear those in your
behalf: Character witnesses; your mother; you know, you, again, if
you want to get up there. And if you didn't get up there, I could not
hold your silence against you.

Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And it is your desire -- or is it your desire to waive
your -- your right to contest these convictions or testify or have other


                                   8
witnesses testify and your lawyer cross-examine the State's witnesses
if they put on anybody? Is that what you want to do?

THE DEFENDANT: That's what I want to do, Your Honor.

THE COURT: Pardon me?

THE DEFENDANT: That's what I want to do.

THE COURT: Okay. All right, sir. So, you want to waive your right
to appeal?

THE DEFENDANT: I'm waiving my right to appeal.

THE COURT: Okay, sir. Do we have a waiver of appeal form here?

MR. BARRON: Yes, sir.

COURT COORDINATOR: Yes, sir.

THE COURT: Where is it?

MR. BARRON: I think it's under that first document. You just had it,
Judge. It's the second one right there.

THE COURT: That's not what I would call a waiver of appeal. This is
just a notification of his rights of appeal.

MR. BARRON: Well, at the bottom, he checks the Defendant's
waived appeal.

THE COURT: All right. Okay. So, I'm looking at this form here
entitled Trial Court Certification of Defendant's Right to Appeal. You
signed where it has Judge there. You need to sign down below.

MR. BARRON: That's my fault. Judge. Williams, you'll have to
change that.

THE DEFENDANT: Excuse me, Your Honor.


                                  9
THE COURT: That's all right.

THE DEFENDANT: Right here. Okay.

THE COURT: So, we've got the block checked that you have waived
your right to appeal here; and by your signature, do you understand
that's what you're doing?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. I'm going to approve your waiver of your right
to appeal. Do you understand that if you appealed and you lost at the
first level, you then would have another appeal to the -- possibly to the
Court of Criminal Appeals in Austin?

THE DEFENDANT: I understand, Your Honor. I think I've wasted
enough of the Court's time.

THE COURT: Okay. And even then, you might have a Writ of
Certiorari to the United States Supreme Court on these Constitutional
questions.
      Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: You're waiving that, also?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. All right. Anything else I need to take up with
him prior to sentencing this?

MR. GOSS: No. No, sir.

MR. BARRON: No, sir, he wanted to make a statement before
sentencing.

THE COURT: Do you want to make a statement now or after the


                                    10
      sentencing?

      THE DEFENDANT: Before.

      THE COURT: Go ahead, sir.

      THE DEFENDANT: Your Honor and District Attorney and
      everybody present, I'm sorry for wasting the Court's time.

      THE COURT: Okay. So, why do you say it was a waste of the Court's
      time?

      THE DEFENDANT: Because I feel like I was wasting the Court's
      time, Your Honor.

                          SENTENCE OF THE COURT

      THE COURT: Okay. Well, all right. I receive what you say.
      I find you guilty based on the jury verdict of guilt and assess is your
      punishment at 30 years in the Institutional Division of the Texas
      Department of Criminal Justice. I find the enhancement counts to be
      true, and I sentence you to 30 years in prison.

(5 RR 4-12).

      Since Appellant affirmatively waived his right to appeal as part of his plea

agreement and did not obtain permission from the trial court to appeal -- like

Lundgren, Jenkins, and Jacobo-Salas – the court of appeals lacks jurisdiction to

consider Appellant’s complaints.

Appellant’s Arguments

      Notwithstanding the Appellant’s informal and voluntary waiver, he believes

this Court should grant the petition, and ultimately allow him to appeal the denial



                                         11
of his motion for new trial, because several unforeseeable claims have arisen since

the waiver of appeal. (Petition at 3). Consequently, Appellant argues that his

waiver of appellate rights should be set aside and he should be allowed to file an

appeal on his case. To support his claim, Appellant cites Ex parte Reedy 282

S.W.3d 492 (Tex. Crim. App. 2009) and Lundgren v. State, 434 S.W.3d 594 (Tex.

Crim. App. 2014).

      First, Lundgren supports the State’s argument, rather than Appellant’s. In

Lundgren, the defendant pled guilty to driving while intoxicated and, as part of his

plea, he waived his appellate rights. Lundgren, 434 S.W.3d 595-97. However, the

plea bargain did not make mention of any waiver of the defendant’s right to file a

motion for new trial. Id. The defendant attempted to file a motion for new trial, as

well as a notice of appeal in the case, in order to delay the beginning of his

probation term. Id. This Court held that where a plea bargain does not mention the

waiver of a motion for new trial, the defendant is entitled to file one.

Consequently, the defendant’s probation term did not start until after the trial court

ruled on the motion for new trial. Id. at 599-600. However, the defendant did not

have the right to file an appeal in the case, because he waived his appellate rights

as part of a bargained-for plea. Id. at 598-99 (“But Appellant’s timely notice of

appeal was not effective in this case because he had previously entered into a

binding appellate waiver, as the court of appeals held.”).


                                          12
       Like Lundgren, Appellant’s plea bargain does not contain any mention of a

motion for new trial. (CR at 36). However, Appellant did formally waive his

appellate rights both in writing in the plea agreement, and during the trial court’s

admonishments.          (CR at 36; 5 RR 4-12).                Consequently, like Lundgren,

Appellant’s notice of appeal was not effective.

       Appellant’s second case, Ex parte Reedy 282 S.W.3d 492 (Tex. Crim. App.

2009), is completely distinguishable from Appellant’s case. Reedy concerned a

defendant waiving any future habeas rights – such as actual innocence – which

could not be reasonably anticipated at the time the waiver was entered into. Id. at

497-99. Such a waiver would leave a defendant without the possibility of having

any relief from a conviction because of an unanticipated, unforeseeable error. Id.

       Unlike Reedy, Appellant’s grounds in the motion for new trial were not

unforeseeable.1 Appellant’s claims in his motion for new trial complain about: 1)

the Texas Rules of Appellate Procedure’s deadlines, 2) a request that Appellant be

allowed to withdraw his plea, and 3) complaints about ineffective assistance of

counsel in the area of cross-examination, preparation of the case, and allowing

inadmissible evidence. However, Appellant was present for trial, observed the

proceedings, and thus was aware of these potential issues prior to entering into the


1       It is important to note that prior to filing the Petition for Discretionary Review, Appellant
never argued that his alleged errors were unforeseeable at the time the plea bargain was entered
into, and the waiver was signed.


                                                  13
plea bargain agreement waiving his appellate rights. See Blanco v. State, 18

S.W.3d 218, 219-20 (Tex. Crim. App. 2000) (holding that the defendant’s waiver

of his appellate rights in exchange for a sixteen year sentence, entered into after the

jury convicted him of the offense, was valid and could not be withdrawn as

Appellant was “fully aware of the likely consequences when he waived his right to

appeal”).

      Allowing Appellant to appeal despite his waiver would allow defendants to

enter into plea bargain agreements without requiring them to uphold their part of

the agreement. Id. (“[The defendant] was fully aware of the likely consequences

when he waived his right to appeal, and it is not unfair to expect him to live with

those consequences now.”). Finally, unlike Reedy, Applicant still has an avenue

through which he can pursue any subsequent claims which have arisen, or may rise

after his waiver – a writ of habeas corpus. Consequently, Appellant’s petition

should be refused because this Court has already considered and rejected

Appellant’s issue and Appellant has not demonstrated that the court of appeals’

opinion is in conflict with any established precedent of law. See Lundgren, 434

S.W.3d at 595-97; Blanco, 18 S.W.3d at 219-20; Taylor, 55 S.W.3d at 585.




                                           14
                                   PRAYER

      Wherefore, the State prays that the Court refuse Appellant’s petition for

discretionary review.

                                             Respectfully submitted,

                                             JARVIS PARSONS
                                             DISTRICT ATTORNEY
                                             BRAZOS COUNTY, TEXAS


                                             /s/   Jessica Escue
                                             Jessica Escue
                                             Assistant District Attorney
                                             300 E. 26th Street, Suite 310
                                             Bryan, Texas 77803
                                             State Bar Number 24059726
                                             (979) 361-4320
                                             Fax: (979) 361-4368
                                             jescue@brazoscountytx.gov

                         CERTIFICATE OF SERVICE

       I do hereby certify that a true and correct copy of the above and foregoing
State's Response to Appellant’s Motion for Rehearing and State’s Motion to
Dismiss Appeal for Want of Jurisdiction was served electronically to Lane
Thibodeaux, attorney for Appellant, at lanet1@msn.com on this the 1st day of
June, 2015.


                                             /s/   Jessica Escue
                                             Jessica Escue




                                        15
        CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

      I certify that the forgoing document has a word count of 2,678 based on the
word count program of Word 2010.



                                             /s/   Jessica Escue
                                             Jessica Escue




                                        16
