                                                                                          ACCEPTED
                                                                                      04-15-00356-CR
                                                                          FOURTH COURT OF APPEALS
                                                                               SAN ANTONIO, TEXAS
                                                                                6/22/2015 10:39:22 AM
                                                                                       KEITH HOTTLE
                                                                                               CLERK

                                 NO. 04-15-00356-CR

                     IN THE COURT OF APPEALS            FILED IN
                                                 4th COURT OF APPEALS
             FOURTH COURT OF APPEALS DISTRICT OF TEXAS
                                                  SAN ANTONIO, TEXAS
                      AT SAN ANTONIO, TEXAS      6/22/2015 10:39:22 AM
                                                                 KEITH E. HOTTLE
                           ALFRED F. VALENZUELA,                      Clerk
                                  Appellant

                                         v.

                             THE STATE OF TEXAS,
                                   Appellee

APPELLANT’S RESPONSE TO THE ORDER PROPOSING TO DISMISS
         THIS APPEAL FOR NO RIGHT OF APPEAL

TO THE HONORABLE COURT OF APPEALS:

        Comes now ALFRED F. VALENZUELA, Appellant, by and through

undersigned counsel, in reply to the order of this Honorable Court dated June 17,

2015, shows the Court the following:

   I.      Procedural history:

        Appellant was charged by indictment in cause number 2013-CR-9521 for

the offense of assault-family violence-second offense (habitual), alleged to have

been committed in Bexar County, Texas, on or about August 24, 2013. (CR, 4).

        On November 17, 2014, pursuant to a written plea agreement with the State,

Appellant pleaded nolo contendere to the reduced offense of assault-family

violence-second offense (repeater). (CR, 5-9). As part of the plea agreement,

Appellant waived the right of appeal in writing. (CR, 9). On March 31, 2015, the
trial court, the Honorable Lorina Rummel presiding, followed the terms of the plea

agreement and sentenced Appellant to a term of five years’ of confinement in the

Texas Department of Criminal Justice – Institutional Division, with a fine of

$1,500. (CR, 45-46). The trial court certified that this is a plea-bargain case, and

Appellant has “NO right of appeal.” (CR, 44). By his signature, Appellant

acknowledged that he was informed that he has no right of appeal in this case. (CR,

44).

         Appellant filed a pro se notice of appeal, file-marked on June 9, 2015, but

with an unsworn declaration dated April 22, 2015, and bearing a postmark of April

29, 2015. (CR, 47-49). This notice of appeal was timely under the “prison mailbox

rule.” Taylor v. State, 424 S.W.3d 39, 43-44 (Tex. Crim. App. 2014). On June 11,

2015, the trial court appointed the Bexar County Appellate Public Defender to

represent Appellant in this attempted appeal.

   II.      No right of appeal:

         Appellant has no right of appeal. As noted above, Appellant pleaded nolo

contendere to the charged offense pursuant to a written plea agreement with the

State. (CR, 5-9). As part of the plea agreement, Appellant waived the right of

appeal in writing. (CR, 9). The trial court certified that this is a plea-bargain case,

and Appellant has “NO right of appeal.” (CR, 44). Appellant signed that notice.

(CR, 44).


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          Rule 25.2(d) of the Texas Rules of Appellate Procedure provides, “The

appeal must be dismissed if a certification that shows the defendant has a right of

appeal has not been made part of the record under these rules.” TEX. R. APP. P.

25.2(d). The undersigned attorney has reviewed documents including the electronic

clerk’s record of this case and can find no right of appeal for Appellant. See TEX.

R. APP. P. 25.2(a)(2) (in a plea-bargain case where the sentence did not exceed the

agreed-upon punishment, the defendant may appeal only: matters raised by written

motion and ruled upon before trial; or after getting the trial court’s permission to

appeal). Therefore, this Court has no choice but to dismiss the appeal. See Chavez

v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006)(where defendant has no

right to appeal after his plea bargain, dismissal of the appeal is required, with no

inquiry by the appellate court into even possibly meritorious claims); Monreal v.

State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003)(a valid waiver of appeal will

prevent a defendant from appealing without the consent of the trial court).

   III.     Relief available to Appellant:

          Although the Court of Appeals is required to dismiss this this appeal,

Appellant may file an application for a writ of habeas corpus pursuant to article

11.07 of the Texas Code of Criminal Procedure, after the mandate is issued. It

should be noted that if Mr. Valenzuela is granted habeas relief, his plea bargain




                                             3
would no longer be applicable, and he could possibly face the full habitual

offender range of punishment.

      WHEREFORE, Appellant, by and through undersigned counsel, is

compelled to concede that the Honorable Court of Appeals and must dismiss this

appeal for the reasons stated above.

                                       Respectfully submitted,


                                       /s/ Michael D. Robbins
                                       MICHAEL D. ROBBINS
                                       Assistant Public Defender
                                       Paul Elizondo Tower
                                       101 W. Nueva St., Suite 370
                                       San Antonio, Texas 78205
                                       Bar No. 16984600
                                       (210) 335-0701
                                       FAX (210) 335-0707
                                       mrobbins@bexar.org

                                       ATTORNEY FOR APPELLANT




                                         4
                       CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the above and
foregoing response has been emailed to the Bexar County District Attorney’s
Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 710,
San Antonio, Texas 78205, on June, 2015.

                                   /s/ Michael D. Robbins
                                   MICHAEL D. ROBBINS
                                   Assistant Public Defender




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