                                                                  ACCEPTED
                                                              04-15-00331-CR
                                                  FOURTH COURT OF APPEALS
                                                       SAN ANTONIO, TEXAS
                                                       10/19/2015 10:47:10 AM
                                                               KEITH HOTTLE
                                                                       CLERK

            NO. 04-15-00331-CR

 IN THE COURT OF APPEALS FOR THE            FILED IN
                                     4th COURT OF APPEALS
     FOURTH DISTRICT OF TEXAS         SAN ANTONIO, TEXAS
         SAN ANTONIO, TEXAS         10/19/2015 10:47:10 AM
     ______________________________    KEITH E. HOTTLE
                                              Clerk
          FERNANDO TORRES,
               Appellant

                      v.

         THE STATE OF TEXAS,
                Appellee
     ______________________________

ON APPEAL FROM 290th JUDICIAL DISTRICT
       OF BEXAR COUNTY, TEXAS
    TRIAL CAUSE NO. 2015-CR-1546W
     ______________________________

         BRIEF FOR THE STATE
     ______________________________

       NICHOLAS ―Nico‖ LAHOOD
         Criminal District Attorney
           Bexar County, Texas

              LAURA E. DURBIN
     Assistant Criminal District Attorney
             Bexar County, Texas
             Paul Elizondo Tower
             101 W. Nueva Street
          San Antonio, Texas 78205
  Phone: (210) 335-2411 Fax: (210) 335-2436
           State Bar No. 24068556

       Attorneys for the State of Texas

    ORAL ARGUMENT REQUESTED
                       Identity of the Parties and Counsel

        Pursuant to TEX. R. APP. P. 38.2(a), the appellee supplements the appellant’s
list of parties as follows:


APPELLATE STATE’S                              Laura E. Durbin
ATTORNEY                                       State Bar No. 24068556
                                               Assistant Criminal District Attorney
                                               Paul Elizondo Tower
                                               101 W. Nueva Street
                                               San Antonio, Texas 78205
                                               (210) 335-2411
                                               laura.durbin@bexar.org




                                          ii
                                              Table of Contents

Identity of the Parties and Counsel ........................................................................... ii

Table of Authorities ...................................................................................................v

I. Statement Regarding Oral Argument ..................................................................1

II.     Statement Regarding Record Notation .............................................................1

III.    Statement of Case .............................................................................................1

IV.     Statement of the Facts ......................................................................................3



V.      State’s Response to Appellant’s First Point of Error: ................................3

         Appellant’s appeal should be dismissed for lack of jurisdiction. The trial
         court’s amended Certification of Appellant Right to Appeal was entered
         after the trial court lost plenary jurisdiction and therefore void. Even if this
         Court has jurisdiction, the evidence supports the finding of guilt. .................3

VI.     Summary of the Argument ...............................................................................3

VII. Argument .........................................................................................................4

   A.      A defendant’s right to appeal in a plea bargain case ...................................4

   B.      The trial court had lost jurisdiction to certify Torres’s right to appeal .......4

   C. The trial court had no inherent authority to certify Torres’s right to appeal
   after it lost plenary jurisdiction ..............................................................................6

   D.      Texas Rules of Civil Procedure do not apply ................................................7

   E.      Torres is in breach of his plea agreement .....................................................7

   F. Torres’s confession supports a finding of guilt ..............................................10
                                                           iii
VIII.     State’s Response to Appellant’s Second Point of Error: .......................12

        Torres stipulated and judicially confessed that he used the lit cigarette as a
        deadly weapon. ..............................................................................................12

IX.     Summary of the Argument .............................................................................12

X.      Argument .......................................................................................................12

XI.     Prayer for Relief .............................................................................................13

XII. Certificate of Compliance...............................................................................14

XIII.     Certificate of Service ...................................................................................14




                                                           iv
                                   Table of Authorities

Cases
Alzarka v. State, 90 S.W.3d 321 (Tex. Crim. App. 2002) ....................................... 8

Blanton v. State, 369 S.W.3d 894 (Tex. Crim. App. 2012) ................................... 10

Ex parte De Leon, 400 S.W.3d 83 (Tex. Crim. App. 2013) ................................ 7, 8

Ex parte Williams, 703 S.W.2d 674 (Tex. Crim. App. 1986) ............................... 10

Hutchings v. Biery, 723 S.W.2d 347 (Tex. App.—San Antonio 1987) .................. 6

Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978) ....................................... 10

Shannon v. State, 708 S.W.2d 850 (Tex. Crim. App. 1986) .................................... 9

State ex rel. Cobb v. Godfrey, 739 S.W.2d 47 (Tex. Crim. App. 1987) .................. 5

State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005) .................................... 4

State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994) ..................................... 5, 6

Stone v. State, 919 S.W.2d 424 (Tex. Crim. App. 1996) ....................................... 10

Strube v. Strube, 379 S.W.2d 44 (Tex. Crim. App. 1963) ....................................... 7

Tijerina v. State, 264 S.W.3d 320 (Tex. App.—San Antonio 2008) ............... 10, 12

Willis v. State, 121 S.W.3d 400 (Tex. Crim. App. 2003) ........................................ 8




                                               v
Statutes

Tex. Code Crim. Proc. Ann. art. 1.15 (West) ........................................................ 10

Tex. Penal Code Ann. § 1.07(a)(17) (West) .......................................................... 12


Other

Tex. R. App. P. 9.4 ................................................................................................. 14

Tex. R. App. P. 25.2 ................................................................................................. 4

Tex. R. App. P. 44.02 ............................................................................................... 4

Tex. R. App. P. 21.8(c) ............................................................................................ 5

Tex. R. App. P. 22.4(a) ............................................................................................ 5

Tex. R. App. P. 22.4(b) ............................................................................................ 5

Tex. R. App. P. 38.2(a) ............................................................................................ 2

Tex. R. App. P. 25.2(a)(2) ....................................................................................... 4

Tex. R. App. P. 21.8(a), 22.4(a) ............................................................................... 5

Tex. R. Civ. P. 329b(e) ............................................................................................ 7




                                                          vi
TO THE HONORABLE COURT OF APPEALS FOR THE FOURTH
DISTRICT OF TEXAS:

      Now comes, Nicholas ―Nico‖ LaHood, Criminal District Attorney of Bexar

County, Texas, and files this brief for the State.

                 I.       Statement Regarding Oral Argument

      The issues in this appeal are not complex, however it raises the unique

question of whether a trial court may certify a defendant’s right to appeal after it

has lost plenary jurisdiction. Given the question presented, the State requests

argument to aid the Court in its resolution of this issue.

                II.      Statement Regarding Record Notation

      There are two court reporter records in this appeal: the plea hearing and the

punishment hearing. The plea hearing will be referenced by the court reporter’s

initials: HT (HT RR __). The punishment hearing will be reference by the court

reporter’s initials: DJ (DJ RR __).

                          III.        Statement of Case

      This is an appeal from a plea bargain agreement. The procedural history of

the case is essential to the State’s response to Appellant’s brief and will therefore

be discussed.

      Appellant, Fernando Torres, (hereinafter ―Torres‖) was charged by

information with the offense of aggravated assault with a deadly weapon. (CR 5).

                                           1
Torres entered into a plea bargain with the State and pled guilty to the offense on

February 13, 2015. (HT RR 8). Torres and the State agreed to a punishment cap

of ten (10) years, a $1500.00 fine, and the dismissal of Torres’s sexual assault

case.1 (CR 11).           On March 3, 2015, after a brief punishment hearing, the trial

court followed the plea bargain and sentenced Torres to ten (10) years in the Texas

Department of Criminal Justice – Institutional Division. (CR 22-23, DJ RR 34-

35). The same day, the trial court entered a Certification of Defendant’s Right to

Appeal in which it certified Torres had no right to appeal because it was a plea

bargain case. (CR 24). The court orally pronounced Torres had no right to appeal

at the punishment hearing. (DJ RR 35).

        On April 1, 2015, Torres filed a Motion for New Trial and Motion in Arrest

of Judgment. (CR 25-28). The trial court never ruled on the motion and it was

denied by operation of law on May 19, 2015, 75 days after the sentence was

imposed.        On May 22, 2015, the trial court entered a new certification of

defendant’s right to appeal in which it gave Torres the right to appeal due to issues

raised in the Motion for New Trial. (CR 29). Torres filed a notice of appeal

several days later on May 26, 2015. (CR 30). This appeal follows.




1
 The sexual assault case was dismissed at sentencing. The aggravated assault with a deadly weapon and sexual
assault case appear to stem from the same May 22, 2014 incident. (CR 16). This is evidenced in the punishment
hearing.

                                                       2
                       IV.        Statement of the Facts

      As this was a plea bargain case, the facts are limited to those found in the

stipulation paperwork, which included an offense report and prosecution guide,

and the testimony from Angela Rojas during the punishment hearing. (CR 16).

Rojas testified on Torres’s behalf, but on cross-examination admitted that

Appellant had beaten her and vaginally and anally raped her on May 22, 2014. (DJ

RR 15, 17-18). Rojas testified she did not recall the cigarette burns from Torres,

but burn marks were observed by the reporting detective on Rojas’s arm and

shoulder. (CR 16, DJ RR 30).

    V.       State’s Response to Appellant’s First Point of Error:

Appellant’s appeal should be dismissed for lack of jurisdiction. The trial
court’s amended Certification of Defendant’s Right to Appeal was entered
after the trial court lost plenary jurisdiction and therefore void. Even if this
Court has jurisdiction, the evidence supports the finding of guilt.


                     VI.       Summary of the Argument

      The trial court certified Appellant’s right to appeal after its plenary

jurisdiction had expired. Because the certification was entered after the trial court

lost jurisdiction, the certification is void. Appellant has no right to appeal in this

plea bargain case and the appeal should be dismissed for lack of jurisdiction.




                                          3
      However, if this Court deems it has jurisdiction, Appellant’s point of error

should be overruled. Appellant’s judicial confession and the stipulated evidence

supports the trial court’s finding of guilt.

                               VII.       Argument

   A. A defendant’s right to appeal in a plea bargain case

      Briefly, in a plea bargain case, a defendant must have the trial court’s

permission to appeal. Both the Texas Rule of Appellate Procedure and Texas

Code of Criminal Procedure establish the parameters of a defendant’s right to

appeal in a plea bargain case. Pursuant to Texas Rule of Appellate Procedure 25.2,

in a plea bargain case a defendant may only appeal if the matters on appeal were

raised by written motion and filed and ruled on before trial or the defendant has

permission from the trial court to appeal. Tex. R. App. P. 25.2(a)(2). Texas Rule

of Appellate Procedure 44.02 confers the defendant the right to appeal, however, in

a plea bargain case in which the punishment does not exceed the punishment

recommended by the State, the defendant must have permission of the trial court.

The Code of Criminal Procedure mimics the appellate rule. Tex. Code Crim. P.

Ann. art. 44.02 (Vernon’s Supp. 2014) (emphasis added).

   B. The trial court had lost jurisdiction to certify Torres’s right to appeal

      A court may retain plenary jurisdiction if a motion for new trial or a motion

for arrest of judgment is filed within 30 days after the judgment is imposed. See


                                               4
State v. Aguilera, 165 S.W.3d 695, 697 (Tex. Crim. App. 2005) (holding court

retains plenary power to modify sentence on the same day initial sentence is

assessed and before the court adjourns for the day, otherwise a motion for new trial

is required). If a motion for new trial is filed, the trial court must rule of the

motion within 75 days after the sentence was imposed. Tex. R. App. P. 22.4(a). If

the trial court does not rule of the motion, it will be denied by operation of law.

Tex. R. App. P. 22.4(b). Regardless of whether the motion is denied by the court

or by operation of law, the court loses its jurisdiction 75 days after the sentence

was imposed. Tex. R. App. P. 21.8(a), 22.4(a); see State v. Bates, 889 S.W.2d 306,

310 (Tex. Crim. App. 1994) (holding appellate court did not err when it found

order for new trial entered 75 days after the initial judgment was void).

      On February 13, 2015, Torres pled guilty pursuant to a plea bargain

agreement. After the trial court sentenced Torres, it certified that he did not have

the right to appeal. Twenty-nine days later, Torres filed a motion for new trial and

a motion to arrest the judgment in which he raised the same argument now on

appeal: there was insufficient evidence to support the deadly weapon finding and a

lit cigarette is not a deadly weapon. The trial court never ruled on the motion and

it was denied by operation of law.

      Here, Torres’s judgment was entered on March 3, 2015. Because a motion

for new trial was filed, the court retained jurisdiction for 75 days after March 3.


                                          5
When no written order was made prior to the expiration of seventy-five days, the

motion was deemed denied by operation of law. Tex. R. App. P. 21.8(c); State ex

rel. Cobb v. Godfrey, 739 S.W.2d 47, 498 (Tex. Crim. App. 1987). Accordingly,

on May 18, 2015, the trial court’s judgment of conviction became final and the

trial court lost plenary jurisdiction.2

        Three days later, the trial court entered a second certification of appealability

in which it granted Torres the right to appeal the issues raised in the motion for

new trial. This certification is void. The trial court had lost jurisdiction on May

18, 2015. Therefore, Torres is bound by the original certification of appeal entered

the day the sentence was imposed stating he had no right to appeal. As this was a

plea bargain case and Torres has no right to appeal, the appeal should be

dismissed.

    C. The trial court had no inherent authority to certify Torres’s right to appeal
       after it lost plenary jurisdiction

        Courts have recognized that trial courts do retain inherent authority over

cases, such as the ability to enter a judgment nunc pro tunc. See State v. Bates, 889

S.W.2d 306, 309 (Tex. Crim. App. 1994) (considering court’s ability to enter

judgments nunc pro tunc under the Rules of Appellate Procedure); see also

Hutchings v. Berry, 723 S.W.2d 347, 3494 (Tex. App.—San Antonio 1987)


2
 The 75th day is May 17, 2015, a Sunday. Under the rules of time computation, jurisdiction would have expired
May 18, 2015. Tex. R. App. P. 4.1(a).

                                                       6
(noting statutory authority for continuing jurisdiction in a suit affecting the parent-

child relationship). No court has recognized the trial court’s inherent authority to

grant a defendant the right to appeal in a plea bargain case after the court lost

plenary jurisdiction.

   D. Texas Rules of Civil Procedure do not apply

      Texas Rule of Civil Procedure 329b(e) allows a trial court to retain plenary

power ―to grant a new trial or to vacate, modify, correct, or reform the judgment

until thirty days after all such timely-filed motion are overruled, either by a written

and signed order or by operation of law, whichever occurs first.‖ Tex. R. Civ. P.

329b(e). The State would quickly note, Rule 329b(e) is inapplicable in a criminal

case. State ex. rel. Cobb v. Godfrey, 379 S.W.2d 47, 49 (Tex. Crim. App. 1987).

Under the Rule of Appellate Procedure 22.4, the trial court lost jurisdiction on the

seventy-fifth (75) day after the sentence was imposed when no new trial was

granted.

   E. Torres is in breach of his plea agreement

   The State notes not only did the trial court not have jurisdiction to amend

Torres’s certification of his right to appeal, Torres breached his plea bargain when

he filed his notice of appeal. He now asks for reversal of his conviction. The State

maintains dismissal of this appeal is the appropriate remedy; however should the




                                          7
Court entertain this appeal, remand due to breach of the agreement is the

appropriate remedy, not reversal.

      A plea bargain is a contract between the State and the defendant. Ex parte

DeLeon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013). When a plea bargain is

finalized and the trial court binds itself to the terms of the agreement, both parties

are entitled to specific performance. Id.

      The Court of Criminal Appeals has continuously upheld a defendant’s right

to appeal in plea bargain cases when a waiver of appeal was not part of the bargain.

In Willis v. State, the Court held a trial court’s independent permission to appeal

outweighs a defendant’s waiver of the right to appeal contained in printed plea

documents. 121 S.W.3d 400, 403 (Tex. Crim. App. 2003). Furthermore, if the

record clearly shows a defendant did not waive his right to appeal, a plea form

including a waiver of the right to appeal will bar a defendant’s right to appeal.

Alzarka v. State, 90 S.W.3d 321, 324 (Tex. Crim. App. 2002).             Recently, in

DeLeon, the Court of Criminal Appeals held based on the totality of the

circumstances, the appellant’s waiver of his right to appeal was not an element of

the plea bargain and he had retained the right to appeal. DeLeon, 400 S.W.3d at

89. However, Torres’s case is unique.

      Not only did the court explain to Torres that because it followed the plea

bargain he could not appeal, the waiver of appeal was clearly part of the plea


                                            8
bargain. The prosecuting attorney, Torres, and Torres’s trial attorney signed a

document entitled ―Plea Bargain.‖       The document described the terms of the

bargain and included a specific portion entitled ―Waiver of Appeal‖ which stated

the following conditions of the plea bargain:

      I understand that upon my plea of guilty or nolo contendere, where the
      punishment does not exceed that recommended by the prosecutor and
      agreed to me, my right to appeal will be limited ton only: (1) those
      matters that were raised by written motion filed and ruled on before
      trial, or (2) other matters on which the trial court gives me permission
      to appeal. I understand that I have this limited right to appeal.
      However, as part of my plea bargain agreement in this case, I
      knowingly and voluntarily waiver my right to appeal under (1)
      and (2) in exchange for the prosecutor’s recommendation,
      provided that the punishment assessed by the court does not
      exceed our agreement…‖

(CR 11) (emphasis added).

      The record supports Torres waived his right to appeal. The agreement was a

10 year punishment cap and the Court assessed punishment at 10 years, thus not

exceeding the agreement. Once the trial court certified Torres’s right to appeal,

and Torres filed his notice of appeal, the plea agreement was breached. If the

appeal is not dismissed for lack of jurisdiction, at the very least, the matter should

be remanded to the trial court to return the parties to the original position because

the terms of the plea bargain agreement have been violated. Shannon v. State, 708

S.W.2d 850, 852 (Tex. Crim. App. 1986) (discussing the appropriate remedy of a




                                          9
challenged negotiated plea agreement is specific performance or withdrawal of the

plea to return parties to the original position).

      The State will note when Torres filed his notice of appeal, the trial court had

lost jurisdiction. The State could not object and request specific performance. Not

only had the trial court already allowed the breach, it no longer had the authority to

require specific performance. Any objection would have been a ―useless task.‖

Blanton v. State, 369 S.W.3d 894, 900 (Tex. Crim. App. 2012) (noting a trial court

properly changed an order via a nunc pro tunc and a hearing on the judgment nunc

pro tunc would have been a useless task).

   F. Torres’s confession supports a finding of guilt

      If this Court deems it has jurisdiction and the plea agreement was not

breached, this Court can still uphold Torres’s conviction because the evidence

sufficiently supports a finding of guilt.

      A person may be convicted of a felony upon entering a guilty plea only if the

State has introduced sufficient evidence supporting the conviction. Tex. Code.

Crim. Proc. Ann. art. 1.15 (Vernon’s Supp. 2014). To satisfy article 1.15, the State

is required to introduce supporting evidence that ―embrace[s] every essential

element of the offense charged.‖ Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim.

App. 1996). The entry of a voluntary plea has the effect of admitting all material

facts alleged in the formal criminal charge. Ex parte Williams, 703 S.W.2d 674,


                                            10
682 (Tex. Crim. App. 1986). A judicial confession alone is sufficient to sustain a

conviction upon a guilty plea and satisfies the State’s burden under article 1.15.

Potts v. State, 571 S.W.2d 180, 181-82 (Tex. Crim. App. 1978); Tijerina v. State,

264 S.W.3d 320, 323-24 (Tex. App.—San Antonio 2008, no. pet.).

      In a short plea hearing, the trial court admonished the defendant to his rights

and at the end of the hearing, Torres entered a guilty plea. Specifically:

      The Court: To the offense of aggravated assault with a deadly
      weapon, how do you plead: Guilty, not guilty or not contest?

      The Defendant: Guilty.

      The Court: Are you pleading guilty because you’re guilty and for not
      other reason?

      The Defendant: Yes, Ma’am.

(HT RR 8-9).

      At the plea hearing, the trial court admitted Torres’s ―Waiver, Consent to

Stipulation of Testimony and Stipulations.‖ (CR 12-15, HT RR 9). In the written

waiver and consent to stipulations, Torres swore he was the person named in the

stipulated evidence, that the evidence was true and correct, and judicially

confessed and admitted that:

      on or about the 22nd day of May, 2014, Fernando Torres, hereinafter
      referred to as defendant, did exhibit and display a deadly weapon, to
      wit: a lit cigarette, that in the manner of its use and intended use was
      capable of causing serious bodily injury and death, and the defendant
      did intentionally, knowingly and recklessly cause bodily injury to


                                          11
      Angela Rojas, hereinafter referred to as complainant, by placing the lit
      portion of the lit cigarette onto the body of the complainant.

(CR 5, 12-13)

      Torres swore the allegations in the information were true and judicially

confessed to those allegations, including the use of a deadly weapon in the

commission the aggravated assault. On appeal, Torres argues the evidence was

insufficient to support his conviction of aggravated assault because a lit cigarette

could not constitute a deadly weapon. However, Torres judicially confessed to

using the lit cigarette in a manner which constituted a deadly weapon. This is

sufficient to support a finding of guilt. Tijerina, 264 S.W.3d at 324.

 VIII.       State’s Response to Appellant’s Second Point of Error:

Torres stipulated and judicially confessed that he used the lit cigarette as a
deadly weapon.

                     IX.       Summary of the Argument

      Torres judicially confessed to using a lit cigarette as a deadly weapon.

Because he confessed to using the cigarette as a deadly weapon, it is sufficient to

support the finding under Texas Penal Code 1.07(a)(17).

                               X.       Argument

      The Penal Code defines ―deadly weapon‖ as ―anything that in the manner of

its use or intended use is capable of causing death or serious bodily injury.‖ Tex.

Penal Code Ann. sec. 1.07(a)(17) (Vernon’s Supp. 2014).            Torres judicially


                                         12
confessed and he admitted that he used the lit cigarette as a deadly weapon. As

stated, a judicial confession alone is sufficient to sustain a conviction upon a guilty

plea and satisfies the State’s burden under article 1.15. Following that rationale, it

Torres admission that he used the lit cigarette as a deadly weapon is sufficient to

support the trial court’s deadly weapon finding.

                           XI.       Prayer for Relief

      The State prays that this Court will dismiss this appeal for lack of

jurisdiction.



                                        Respectfully submitted,
                                        NICHOLAS ―Nico‖ LAHOOD
                                        Criminal District Attorney
                                        Bexar County, Texas

                                        /s/ Laura E. Durbin
                                         ______________________________
                                         LAURA E. DURBIN
                                         Assistant Criminal District Attorney
                                         Bexar County, Texas
                                         101 West Nueva, 7th Floor
                                         San Antonio, Texas 78204
                                         (210) 335-2411
                                         laura.durbin@bexar.org
                                         State Bar No. 24068556
                                         (On Appeal)

                                        Attorneys for the State




                                          13
                    XII.       Certificate of Compliance

      I certify, in accordance with newly revised Rule 9.4 of the Texas Rules of

Appellate Procedure that this document contains 2,885 words.

                                        /s/ Laura E. Durbin
                                        _____________________________
                                        LAURA E. DURBIN




                     XIII.          Certificate of Service


      I, Laura Durbin, Assistant Criminal District Attorney, hereby certify that a

true and correct copy of the above and foregoing brief was served electronically to

Anthony J. Colton, Counsel for Fernando Torres, at acolton@coltonlawfirm.com

on the 19th day of October, 2015.



                                        /s/ Laura E. Durbin
                                        _____________________________
                                        LAURA E. DURBIN




                                          14
