                                                                          PD-1104-17
                                                         COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                          Transmitted 11/6/2017 8:50 AM
                                                            Accepted 11/7/2017 4:54 PM
                                                                  DEANA WILLIAMSON
                 PD-1104-17 & PD-1105-17                                         CLERK

                                                              FILED
                                                     COURT OF CRIMINAL APPEALS
                        TO THE                              11/7/2017
                                                      DEANA WILLIAMSON, CLERK

COURT OF CRIMINAL APPEALS
                       OF TEXAS
                     ***************

           LUIS DANIEL AYALA
                                       Petitioner,
                           v.

          THE STATE OF TEXAS
                                       Respondent.
                     ***************
 PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBERS
  07-16-411-CR & 07-16-412-CR FROM THE SEVENTH COURT OF
      APPEALS AND IN CAUSE NUMBERS CR-2016E-094 &
         CR-2016E-095 FROM THE 181st DISTRICT COURT
                   OF DEAF SMITH COUNTY
                     ***************

PETITION FOR DISCRETIONARY REVIEW
                     ***************

                                       John Bennett
                                       Post Office Box 19144
                                       Amarillo, TX 79114
                                       Telephone: (806) 282-4455
                                       Fax: (806) 398-1988
                                       AppealsAttorney@gmail.com
                                       State Bar No. 00785691
                                       Attorney for the Petitioner

      THE PETITIONER REQUESTS ORAL ARGUMENT
       IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Court Judge

Hon. Roland Saul

Appellant

Luis Daniel Ayala

     Trial Counsel:       Rus L. Bailey (State Bar No. 01538500)
                          2505 Lakeview Drive, Suite 301
                          Amarillo, Texas 79109
                          Telephone: (806) 367-9692

     Appellate Counsel:   John Bennett (State Bar No. 00785691)
                          P.O. Box 19144
                          Amarillo, Texas 79114
                          Telephone: (806) 282-4455

Appellee

     The State of Texas

     Trial Counsel:       James English (State Bar No. 06625280)
                          Deaf Smith County Criminal District Attorney
                          William C. Strowd (State Bar No. 19425400)
                          Assistant Criminal District Attorney
                          235 East Third Street, Room 401
                          Hereford, Texas 79045
                          Telephone: (806) 364-3700

     Appellate Counsel:   William C. Strowd (State Bar No. 19425400)
                          Assistant Criminal District Attorney
                          235 East Third Street, Room 401
                          Hereford, Texas 79045
                          Telephone: (806) 364-3700

                                  2
                                     TABLE OF CONTENTS
Identity of Judge, Parties and Counsel .................................................................2

Index of Authorities..............................................................................................4

Statement Regarding Oral Argument ...................................................................6

Statement of the Case ...........................................................................................6

Statement of Procedural History ..........................................................................6

Ground for Review ...............................................................................................6


                Is an award of restitution independent of – or unsupported by
         – a valid plea of guilty? (Opinion below, p. 4)


Argument ..............................................................................................................7

Prayer for Relief ...................................................................................................8

Certificate of Compliance ....................................................................................8

Certificate of Service ............................................................................................9

Court of Appeals’ Opinion ......................................................... following page 9




                                                           3
                          INDEX OF AUTHORITIES

Cases

Hanna v. State, 426 S.W.3d 87 (Tex.Crim.App. 2014) ................................... 7-8

Idowu v. State, 73 S.W.3d 918 (Tex.Crim.App. 2002) ........................................8

Thomas v. State, 408 S.W.3d 877 (Tex.Crim.App. 2013)....................................7

Young v. State, 8 S.W.3d 656 (Tex.Crim.App. 2000) ..........................................7




                                              4
                            PD-1104-17 & PD-1105-17


                                   TO THE

COURT OF CRIMINAL APPEALS
                                  OF TEXAS

                                ***************

                  LUIS DANIEL AYALA
                                                    Petitioner,
                                        v.

                 THE STATE OF TEXAS
                                                    Respondent.
                                ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBERS
     07-16-411-CR & 07-16-412-CR FROM THE SEVENTH COURT OF
         APPEALS AND IN CAUSE NUMBERS CR-2016E-094 &
            CR-2016E-095 FROM THE 181st DISTRICT COURT
                      OF DEAF SMITH COUNTY
                                ***************

PETITION FOR DISCRETIONARY REVIEW
                                ***************



To the Honorable Judges of the Court of Criminal Appeals:

      COMES NOW Luis Daniel Aguilera, petitioner in the above cause, and

submits this petition in support of his request for remand to the Seventh Court of

Appeals for new analysis.
                                        5
         STATEMENT REGARDING ORAL ARGUMENT

      Because an issue of first impression is involved, the petitioner requests

oral argument.



                      STATEMENT OF THE CASE

      The petitioner was convicted of unlawful possession of a firearm by a

felon (#07-16-411-CR) and possession with intent to deliver a controlled

substance. (#07-16-412-CR). Based on a plea agreement, the trial court assessed

sentence at 30 years’ imprisonment in each case, to run concurrently, and

ordered restitution of $180.



            STATEMENT OF PROCEDURAL HISTORY

      The court of appeals affirmed the conviction and sentence on August 10,

2017 (opinion attached). The petitioner filed a motion for rehearing on August

25, 2017, but on September 5, 2017, the court of appeals denied rehearing. A

motion to extend time to file this PDR was granted, to November 6, 2017.



                         GROUND FOR REVIEW

      Is an award of restitution independent of – or unsupported by – a valid

plea of guilty? (Opinion below, p. 4)

                                        6
                                  ARGUMENT

      Restitution was included in the plea agreement to which the petitioner

pled guilty in the trial court. The sum of $180 was described as the cost of

testing the controlled substance by the Texas Department of Public Safety.

(Opinion, p. 2).

      In the court of appeals the petitioner raised two issues regarding

restitution – that testing is not a “foreseeable result” of possession of such a

substance, and that DPS is not a “person who suffered loss as a direct result of

the criminal offense,” both of which are required by Hanna v. State, 426 S.W.3d

87, 91, 94 (Tex.Crim.App. 2014). But the court of appeals ruled that by his

guilty plea to the plea agreement, the petitioner “obligated himself to abide by

that agreement even if the evidence may not have supported the award in the

first place.” (Opinion, attached, p. 4).

      Yet as the petitioner noted in his Motion for Rehearing,

      Whether entered with or without an agreed recommendation of
      punishment by the State, a valid plea of guilty or nolo contendere
      “waives” ... or forfeits the right to appeal a claim of error only when the
      judgment of guilt was rendered independent of, and is not supported by,
      the error.

Thomas v. State, 408 S.W.3d 877, 880, n. 8 (Tex.Crim.App. 2013) (ellipsis

points in original) (emphasis added), quoting Young v. State, 8 S.W.3d 656, 666-

7, n. 32 (Tex.Crim.App. 2000).
                                           7
      Restitution is unquestionably part of the punishment, Hanna, 426 S.W.3d

at 91, and thus scarcely independent of the judgment. And as the Opinion (p. 4)

further notes, the factual basis for a restitution order may be raised for the first

time on appeal. Idowu v. State, 73 S.W.3d 918, 921 (Tex.Crim.App. 2002). The

petitioner’s claims regarding restitution should accordingly be cognizable for the

first time on appeal.



                           PRAYER FOR RELIEF

      The petitioner prays the Court grant discretionary review and remand the

case to the court of appeals for new analysis, or grant all appropriate relief.

                                              Respectfully submitted,

                                              /s/ JOHN BENNETT
                                              John Bennett
                                              Post Office Box 19144
                                              Amarillo, TX 79114
                                              Telephone: (806) 282-4455
                                              Fax: (806) 398-1988
                                              AppealsAttorney@gmail.com
                                              State Bar No. 00785691
                                              Attorney for the Petitioner



                  CERTIFICATE OF COMPLIANCE

      I certify that this entire PDR contains 1,006 words.

                                              /s/ JOHN BENNETT
                                              John Bennett
                                          8
                    CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above PDR has been served on

Chris Strowd, Esq., Assistant Criminal District Attorney for Deaf Smith County,

by email to him at cstrowd@gmail.com, and on Stacey M. Soule, Esq., State

Prosecuting Attorney, by email to her at information@spa.texas.gov, both on

November 6, 2015.

                                           /s/ JOHN BENNETT
                                           John Bennett




                                       9
                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   Nos. 07-16-00411-CR
                                         07-16-00412-CR


                          LUIS DANIEL AYALA, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 222nd District Court
                                 Deaf Smith County, Texas
       Trial Court Nos. CR-16E-094 & CR-16E-095, Honorable Roland D. Saul, Presiding

                                    August 10, 2017

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Luis Daniel Ayala (appellant) appeals his convictions for being a felon who

unlawfully possessed a firearm and possessing a controlled substance with the intent to

deliver.   His first issue pertains to the trial court’s decision to deny his motion to

suppress. His remaining two issues involve his agreement to pay the DPS $180 as

restitution as part of a plea agreement. We affirm.
       Background

       An arrest warrant had been issued for the arrest of appellant. Law enforcement

officials obtained information that he was at his residence. With that information, they

applied for and received a search warrant (first search warrant) permitting them to enter

the house to arrest him. Both the arrest warrant and first search warrant then were

executed. Once appellant was in custody outside the abode, law enforcement officials

re-entered the house to look for others who may be there. They already had removed

appellant and two other persons via their initial entry.

       Upon conducting the second search for persons, officers noticed contraband in

the house. Rather than seize it at that time, they secured a second search warrant

permitting them to do so. They executed that second warrant and seized the items or

contraband underlying appellant’s current prosecutions.

       Issue One – Suppression of the Evidence

       Regarding the contention that the trial court erred in denying appellant’s motion

to suppress, we conclude that the grounds urged on appeal to obtain reversal do not

comport with those urged at trial.         This conclusion is based on the following

observations. First, the drugs and firearms for which he was prosecuted were obtained

through the execution of the second search warrant, not the first or the arrest warrant.

Second, at the hearing on his motion to suppress the trial judge asked appellant’s

counsel about the issue requiring attention at the suppression hearing.      Appellant’s

counsel responded with: 1) “[t]he issue, Your Honor, realistically is the first search

warrant that was issued by the justice of the peace, which was brought to her by Agent

Medrano”; 2) “[a]nd it’s because, I believe, based on the affidavit for that search



                                              2
warrant, that search warrant should’ve never been issued”; 3) “[a]s far as the second

search warrant, Your Honor, I’m not concerned with that”; and, 4) “[i]t’s not that I’m not

concerned about it. It’s just that’s not an issue for the hearing this morning.”

        Before us, though, appellant’s focus lies on the second warrant, not the first. He

attempts to negate its legitimacy by arguing that the probable cause upon which it was

based arose from an improper secondary sweep of the premises. So too does he

assert, for the first time, that the officers who executed the second warrant should have

known of the purportedly unlawful nature of the secondary sweep and, therefore, could

not have acted in good faith by relying on the second warrant to seize the contraband. 1

        So, as we can see, the grounds uttered by appellant here to negate the second

warrant vary from those mentioned below. Due to that circumstance, they were not

preserved for consideration on appeal. Jenkins v. State, 493 S.W.3d 583, 613 (Tex.

Crim. App. 2016) (holding that the court need not consider the arguments presented on

appeal because they were not before the trial court at the time of the ruling). And, that

requires us to overrule issue one.

        Issues Two and Three - Restitution

        In his next two issues, appellant questions the trial court’s order that he pay

restitution to the Department of Public Service in the amount of $180. Allegedly, 1) the

evidence was insufficient to justify restitution, and 2) restitution could be “ordered only to


        1
          On page 19 of his brief, appellant asserts that “[a]t closing argument defense counsel - although
in a roundabout or indirect fashion – contended that evidence gleaned from such a procedure after the
arrest should be inadmissible, since nothing had been testified ‘to show that there’s any reason why’ the
second ‘search warrant should’ve been granted, period, because’ Agent Medrano ‘had the arrest
warrant.’” (Emphasis added). This statement was undoubtedly made in effort to show that appellant
preserved his attack upon the second search warrant despite his earlier representation that it was not an
issue at the hearing. Reading the “closing argument” referred to, though, reveals that defense counsel
was actually alluding to the first search warrant, not the second. So, the statement on page 19 is an
inaccurate characterization of the record.

                                                    3
a victim of a direct result of the offense, and that the order here must rest on describing

DPS as such a victim.” (Emphasis in original). We overrule these issues, as well.

       Appellant did not question the legitimacy of the assessment below. Thus, he did

not preserve his contention that restitution was inappropriate because the DPS was not

a victim. See Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002) (stating that

“[i]f a defendant wishes to complain about the appropriateness of (as opposed to the

factual basis for) a trial court’s restitution order, he must do so in the trial court”).

       As for the contention that the award lacked evidentiary support, we note that the

assessment was part of a plea agreement. The appellate record illustrates as much.

And, when asked whether the State’s description of the agreement (which happened to

include reference to $180 payable to the DPS for analyzing the controlled substances)

was what he understood the agreement to be, appellant answered “Yes, sir.” This

resulted in the trial court assessing the $180 payment upon appellant.

       By agreeing to the assessment as part of the plea and effectively asking the

court to abide by the plea agreement, appellant waived his right to complain that the

assessment lacked evidentiary support. Price v. State, No. 12-10-00363-CR, 2011 Tex.

App. LEXIS 6550, at *7 (Tex. App.—Tyler Aug. 17, 2011, no pet.) (mem. op., not

designated for publication). In other words, appellant entered into a contract with the

State to pay the $180 via his plea agreement; thus, he obligated himself to abide by that

agreement even if the evidence may not have supported the award in the first place.

See Harris v. State, No. 12-12-00398-CR, 2013 Tex. App. LEXIS 9537, at *6-7 (Tex.

App.—Tyler July 31, 2013, no pet.) (mem. op., not designated for publication) (stating

that “by entering into the contractual relationship [i.e., plea agreement] without



                                                4
objection, a defendant affirmatively waives any rights encroached upon by the terms of

the contract,” including “a challenge to the sufficiency of the evidence supporting the

imposition of financial obligations as a condition of community supervision”).

      Accordingly, we affirm the judgment of the trial court.




                                                Brian Quinn
                                                Chief Justice


Do not publish.




                                            5
