                                                                                   PD-0587-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
  October 9, 2015                                                Transmitted 10/9/2015 3:19:38 PM
                                                                   Accepted 10/9/2015 3:47:51 PM
                                  PD-0587-15                                       ABEL ACOSTA
                                                                                           CLERK
                    IN THE COURT OF CRIMINAL APPEALS OF
                            THE STATE OF TEXAS

__________________________________________________________________

                           ANDREW OLEVIA JONES

                                   Appellant,

                                      vs.

                            THE STATE OF TEXAS

                              Appellee
 ________________________________________________________________

                            BRIEF ON PETITION

        Petition for Discretionary Review from the First Court of Appeals
       No. 01-14-00501-CR, affirming the conviction of Cause No. 1390646
                   338th District Court of Harris County, Texas
                    Honorable Brock Thomas, Judge Presiding

__________________________________________________________________

                                                 ALEXANDER BUNIN
                                                 Chief Public Defender,
                                                 Harris County, Texas
                                                 ________________________
                                                 MELISSA MARTIN
                                                 Assistant Public Defender
                                                 Harris County, Texas
                                                 TBN. 24002532
                                                 1310 Prairie, Suite 980
                                                 Houston, TX 77002
                                                 Phone: (713)274-6709
                                                 Fax: (713)437-4319
                                                 melissa.martin@pdo.hctx.net
             IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                         Andrew Olevia Jones
                                   TDCJ# 01930243
                                   Eastham Unit, TDCJ
                                   2665 Prison Road #1
                                   Lovelady, TX 75851


TRIAL PROSECUTOR:                  Jim O’Donnell
                                   Assistant District Attorney
                                   Harris County Texas
                                   1201 Franklin St, 6th Floor
                                   Houston, TX 77002


DEFENSE COUNSEL AT TRIAL:          Thomas Joseph Lewis
                                   Attorney at Law
                                   1602 Washington Ave
                                   Houston, TX 77007


COUNSEL ON APPEAL FOR APPELLANT:   Melissa Martin
                                   Assistant Public Defender
                                   Harris County TX
                                   1201 Franklin St, 13th Floor
                                   Houston, TX 77002
                                   melissa.martin@pdo.hctx.net


PRESIDING JUDGE:                   Hon. Brock Thomas
                                   338th District Court
                                   Harris County, TX
                                   1201 Franklin St, 15th Floor
                                   Houston, TX 77002




                            ii
                                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

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

STATEMENT OF THE CASE ..................................................................................................... 1

STATEMENT OF THE FACTS.................................................................................................... 1

STATEMENT OF PROCEDURAL HISTORY .............................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1

ISSUE PRESENTED ................................................................................................................... 5
      THE COURT OF APPEALS ERRED IN DISMISSING APPELLANT’S APPEAL BY
          FINDING THE STATE HAD GIVEN CONSIDERATION FOR THE WAIVER IN
          THE PLEA PAPERS AND APPLYING THIS COURT’S HOLDING IN EX PARTE
          BROADWAY RATHER THAN ITS HOLDING IN EX PARTE DELANEY, 207
          S.W.3D 794 (TEX. CRIM. APP. 2006).
          .

SUMMARY OF ARGUMENT ...................................................................................................... 5

ARGUMENT

     A. LAW ............................................................................................................................... 6

     B. ANALYSIS .................................................................................................................... 12

PRAYER .................................................................................................................................. 15

CERTIFICATE OF SERVICE .................................................................................................... 16

CERTIFICATE OF COMPLIANCE ........................................................................................... 16

APPENDIX


                                                                    iii
                                         INDEX OF AUTHORITIES

Cases

Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000) ............................................... 7, 8, 9

Ex Parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) ....................................passim

Ex Parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006). ......................................passim

Ex Parte Dickey, 543 S.W. 2d 99 (Tex. Crim. App. 1976)(opinion on original
  submission). ..........................................................................................................5, 6, 7, 15

Ex Parte Huskins, 176 S.W. 3d 818 (Tex. Crim. App. 2005) ........................................... 10

Ex Parte Reedy, 282 S.W.3d 492 (Tex. Crim. App. 2009) ............................................... 6, 7

Jones v. State, 01-14-00501-CR, 2015 WL 173491 (Tex. App.—Houston [1st Dist.] mem.
   op., not designated for publication) ........................................................................... 1, 13

Monreal v. State, 99 S.W. 3d 615 (Tex. Crim. App.2003) ........................................ 6, 7, 8, 9

Panelli v. State, 709 S.W.2d 655 (Tex. Crim. App. 1986) ..................................................... 8

Smith v. State, 440 S.W.2d 843 (Tex. Crim. App. 1969) ............................................ 6, 7, 15

Ex Parte Thomas, 545 S.W.2d 470 (Tex. Crim. App. 1977) .................................................. 9

Ex Parte Townsend, 538 S.W.2d 419 (Tex. Crim. App. 1976). ............................................ 9

Von Schounmacher v. State, 5 S.W. 3d 221 (Tex. Crim. App. 1999) ................................... 10

Washington v. State, 363 S.W.3d 589 (Mem) 2012) ................................................... 6, 13, 15


Statutes

Tex. Code Crim. Proc. Art. 27(b) ......................................................................................... 8

                                                                iv
Tex. Penal Code §12.42(b). ................................................................................................. 14

Tex. Penal Code §22.01(b-1), (1), (2), & (3) .................................................................. 1, 14


Rules

Tex. Rules App. Proc. 25.2(a)(2)......................................................................................... 10




                                                              v
                               Statement of the Case

       Mr. Jones, appellant, was charged by indictment of second-degree felony assault

of a family member under sec. 22.01(b-1) on August 23, 2013. The indictment alleged

a prior final felony conviction for aggravated assault of a family member and two

enhancement paragraphs: 1) prior final felony conviction for aggravated robbery; and

2) a prior final felony conviction for possession of a controlled substance, which the

state abandoned (C.R. at 24). He pleaded guilty to the trial court without an agreed

recommendation and requested a presentence investigation report (PSI) and a PSI

hearing before the court.

       The trial court, after the hearing held on May 14, 2014, sentenced Mr. Jones to

15 years in the Institutional Division of the Texas Department of Criminal Justice. The

First Court of Appeals dismissed the direct appeal in Jones v. State, 01-14-00501-CR,

2015 WL 173491 (Tex. App.—Houston [1st Dist.] mem. op., not designated for

publication).

                                 Statement of Facts

A.     The Pertinent Documents

       Mr. Jones initialed the following paragraph in the plea admonishments:

       PERMISSION TO APPEAL: If the punishment assessed by the Court
       does not exceed the punishment recommended by the prosecuting
       attorney and agreed to by you and your attorney, the Court must give its
       permission to you before you can appeal any matter in the case, except for
       matters raised by written motion filed prior to trial.

(C.R. at 56-7).
                                           1
       The first page of the standard, preprinted plea form, “Waiver of Constitutional

Rights, Agreement to Stipulate and Judicial Confession,” set out the charge, the

existence of a prior aggravated assault of a family member, and two felony enhancement

paragraphs, the second of which had a line through it. The second page ended with the

following paragraph:

       I intend to enter a plea of guilty and the prosecutor will recommend that
       my punishment should be set at_____________________________
       _____________________________________________________
        WOAR (handwritten)
       ____________________________________________________
       and I agree to the recommendation. I waive any further time to prepare
       for trial to which I or my attorney may be entitled. Further, I waive any
       right of appeal which I may have should the court accept the foregoing
       plea bargain agreement between myself and the prosecutor.

(C.R. at 54). This paragraph was followed by appellant’s signature.

       The trial court’s Certification of Defendant’s Right to Appeal indicates that Mr.

Jones “has waived the right to appeal” and is signed by Mr. Jones and his attorney (C.R.

at 61). On the next page in the Clerk’s Record is an untitled document recording the

case number, the names of appellant and the prosecutor, and the words “Plea

Information” (C.R. at 61). This information is followed by a handwritten notation:

“Abandon one e (circled) ¶, plead to PSI WOAR.” This document is not signed by

anyone, nor is it dated. (C.R. at 61).

       B.     The Plea Colloquies

       Mr. Jones’s plea was entered on March 19, 2014 and was at that time reset to

May 14, 2015 for a punishment hearing following a presentence investigation (C.R. at
                                           2
53-54; 64). Both the plea colloquy and the hearing were made on the record (2 R.R and

3 R.R.).

       At the March plea colloquy, the trial court and appellant engaged in the following

dialogue:

              THE COURT: Mr. Jones, you stand charged by indictment with
       the offense of assault of a family member, second offender. State’s alleged
       that you’ve once before been convicted of assault of a family member and
       you’ve also once before been convicted of the offense of aggravated
       robbery.
              How do you plead to those enhancements, true or not true?

                 THE DEFENDANT: True.

              THE COURT: The range of punishment in your case, then, is not
       less than two no (sic) more than 20 years TDC and a fine not to exceed
       $10,000. Do you understand that that’s the range of punishment?

                 THE DEFENDANT: Yes sir.

                 THE COURT: How do you plead?

                 THE DEFENDANT: Guilty.

(2 R.R. at 5).

       Further into the colloquy, the trial court admonished that by signing the plea,

Mr. Jones was giving up his right to a jury trial and to call witnesses, question witnesses,

and even testify on his own behalf. The court mentions nothing about giving up his

right to appeal (2 R.R. at 7). The court then states: “This case is a plea without an agreed

recommendation. That means it is what it says (sic), that there is no agreement between



                                             3
you and the State as to what the resolution of this case should be. Do you understand

that?” (2 R.R. at 7-8).

       At the hearing, the trial court conducted a second plea colloquy prior to

proceeding with testimony (3 R.R. at 6-9). This time, the court explained that the range

of punishment at the original plea had been incorrect:

       [Y]ou stand charged by indictment with the offense of assault on a family
       member by impeding breathing. There’s (sic) two enhancement
       allegations: One, that you’ve once before been convicted of aggravated
       assault of a family member; and that you’ve once before been convicted
       of aggravated robbery in 1992. The other enhancement allegation alleging
       that you committed the offense of possession of a controlled substance in
       the 262nd District Court in June 1999, the State had abandoned that
       enhancement allegation.
               But with the two enhancement allegations, how do you plead to
       those, true or not true?

              THE DEFENDANT: True.

              THE COURT: All right. Just to be clear – and I believe the
       paperwork has been corrected to indicate this – that with those two
       enhancement allegations, that does, in fact, make your range of
       punishment in your case not less than five years nor more than 99 or life
       confinement in the Texas Department of Criminal Justice Institutional
       Division and a fine not to exceed $10,000.
              Do you understand that that’s the range of punishment?

              THE DEFENDANT: Yes, sir.
(3 R.R. at 6-7).

       The court then quickly went over the rest of the plea conditions and again said

nothing about Mr. Jones having waived his right to appeal. (3 R.R. at 7-9). Appellant

again pleaded “true” to the “two enhancement allegations” and “guilty” to the assault

on a family member (4 R.R. at 10). After confirming that appellant still wished to plead
                                           4
guilty, the trial court proceeded with the sentencing hearing (4 R.R. at 10). In neither

colloquy did the court mention Mr. Jones’s waiver of appeal.

      The court of appeals found the state had given consideration by abandoning one

of the enhancements at the time of Mr. Jones’s plea. The court reasoned that this case

is governed by Ex Parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009), wherein this

Court held “a defendant may knowingly and intelligently waive his entire appeal as part

of a plea, even when sentencing is not agreed upon, where consideration is given by the

state for that waiver.” Broadway, 301 S.W.3d at 699.

                                   Issue Presented

      The Court of Appeals erred in dismissing appellant’s appeal by finding the
      state had given consideration for the waiver in the plea papers and
      applying this Court’s holding in Ex Parte Broadway rather than its holding
      in Ex Parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006).

                               Summary of Argument

      The court of appeals wrongly dismissed Jones’s appeal. The concerns this Court

has consistently expressed as to whether a pretrial waiver of appeal is enforceable are

present in the case, namely that the defendant has no way of knowing with certainty the

punishment that will be assessed and cannot anticipate the errors that may occur during

the trial. Ex Parte Dickey, 543 S.W. 2d 99 (Tex. Crim. App. 1976)(opinion on original

submission). The record does not reflect the state gave consideration for Mr. Jones’s

waiver of appeal. This Court’s holdings in Ex Parte Delaney and Washington v. State, 363



                                           5
S.W.3d 589 (Mem) 2012), not Ex Parte Broadway, state the law governing the facts of

this case.


                                     Argument

A.     Law

       In order for a waiver of the right to appeal to be valid, the waiver must be

knowing, voluntary, and intelligent. Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim.

App. 2003).

       In Ex Parte Reedy, 282 S.W.3d 492, 496-98 (Tex. Crim. App. 2009)—handed

down the same year as Broadway—this Court surveyed its cases regarding pretrial

waivers of appeals, as a starting point for its subsequent analysis of Reedy’s waiver of

his habeas writ. Tracing the development of circumstances that would render a waiver

knowingly, voluntarily, and intelligently made, the Court began with Smith v. State, 440

S.W.2d 843, 844 (Tex. Crim. App. 1969)(waiver of right to file motion for new trial

invalid where waiver was made prior to trial at time where he could know whether he

would have grounds to file motion) and Ex Parte Dickey, 543 S.W.2d 99 (Tex. Crim.

App. 1976)(opinion on original submission)(extended Smith to pretrial waivers of appeal

as the right to file not matured so cannot know punishment with certainty or anticipate

errors that may occur at trial). Id at 496.

       The Court cited Dickey to demonstrate three concerns regarding pretrial waivers:

       [T]he procedure of requiring the defendant to waive the right of appeal
       prior to trial should be condemned. At this point, the right has not yet
                                              6
       matured, the defendant has no way of knowing with certainty the
       punishment that will be assessed and cannot anticipate the errors
       that may occur during the trial. Surely a waiver of appeal under such
       circumstances cannot be knowingly and intelligently made.

Id, citing Dickey, 543 S.W.2d at 101.

       The Reedy Court continued its review of these cases up to and including Delaney

and concluded with the following summation of the state of the pretrial waiver of appeal

law at that time:

       Thus, we have held that a defendant may waive his right to appeal, but
       that his waiver will be knowingly and intelligently made only under
       circumstances in which, and to the extent that, he is aware of what has
       occurred in the trial proceedings. Only then is he in a position to know
       the nature of the claims he could have brought on appeal but for his
       waiver.

Id at 498.

       Two of the cases discussed within Reedy upheld waivers. Blanco v. State, 18 S.W.3d

218 (Tex. Crim. App. 2000) and Monreal v. State, 99 S.W. 3d 615 (Tex. Crim. App.2003).

In Blanco, the defendant waived his right to appeal after he was convicted but before his

sentence. Blanco, 18 S.W.3d at 219. In exchange for the waiver, the state agreed to

recommend a 16-year punishment to the trial court; the court abided by the

recommendation. Id. Blanco appealed and, on dismissal by the court of appeals, filed a

petition for discretionary review in this Court, arguing his waiver was invalid because it

was made prior to punishment Id.

       On review, this Court, in upholding the waiver, reasoned that the concerns

originally expressed in Smith and Dickey--unanticipated errors at trial and uncertainty
                                            7
regarding punishment--were not present in Blanco’s case.1 Blanco had been present

during the trial and would have been aware of any appealable error prior to signing the

waiver. Id. And any error there might have been in the punishment phase was rendered

moot because the trial judge followed the terms of the punishment agreement. Id at

220.

       In Monreal, the defendant signed the waiver after conviction and assessment of

punishment by a jury and judgment rendered by the trial court. Monreal 99 S.W.3d at

616. The record does not reveal why Monreal chose to sign the waiver under those

circumstances. Monreal had argued that the waiver was unenforceable because he had

had no negotiated plea bargain with the state, citing Blanco as authority. Id at 616-17.

This Court upheld the waiver as knowingly and intelligently made because at that point

he “would [have known] what his punishment would be and what errors [had] occurred

during trial at the time of his waiver.” Id at 618.

       The overriding principle in all these opinions is that pretrial waivers can only be

knowing and voluntary, and thus valid, if the defendant can know with certainty the

consequences of the waiver at the time he makes it. This principle is reiterated in Delaney,

and explicitly distinguishes the circumstances of Delaney’s waiver to those of Blanco

and Monreal:



1
  The first concern—premature motion for new trial and notice of appeal, respectively—were
disposed of by the passage of art. 27(b) of the Texas Code of Criminal Procedure and Panelli v. State,
709 S.W.2d 655, 657 (Tex. Crim. App. 1986).
                                                  8
       In Monreal, we explained that Blanco does not require a plea agreement for
       a waiver to be binding; rather, the importance of the plea agreement in
       Blanco was that it determined that Appellant’s waiver was knowing and
       intelligent by specifying the punishment…. Monreal held that there is no
       requirement that a waiver be bargained for in order for it to be binding….
       However, the unbargained-for waiver of appeal in Monreal was signed after
       his punishment was assessed and he was sentenced, alleviating the
       concerns raised in Thomas and Townsend.

Delaney, 207 S.W.3d at 798.

       Delaney, which was before this Court in a habeas proceeding, involved an open

plea and a motion for deferred adjudication. Id at 207 S.W.3d at 795-96. Delaney was

given a choice of accepting the trial court’s punishment or asking for a jury to assess his

sentence. He chose an open plea to the trial court in hopes of being granted deferred

adjudication. At the plea hearing, he waived the right to a jury trial, pleaded guilty, and

stipulated to the truth of the allegations in the indictment. The court granted him ten

years deferred adjudication. Delaney, 207 S.W.3d at 796.

       The court asked applicant if he wanted to accept this sentence or would
       like a jury to determine punishment. He chose to accept the court’s
       deferred sentence. Applicant was informed of his right to appeal. He
       testified that he understood his rights and signed a waiver of appeal. The
       waiver of the right to appeal states that “he does not wish to appeal his
       conviction and expressly waives his right to appeal.”

Id.

       Delaney was eventually adjudicated and sentenced to life in prison; the trial court

refused to grant him permission to appeal. Id at 795.

       This Court, in analyzing Delaney’s situation, distinguished it from that of

Blanco, in that Delaney had no plea bargain, stated:
                                            9
       Even when a waiver is bargained for in exchange for deferred
       adjudication, if the plea agreement does not contain a recommended
       punishment to be imposed if guilt is adjudicated, then the waiver may not
       be knowing and intelligent and thus may not be valid.

Delaney, 207 S.W.3d at 799, citing Ex Parte Huskins, 176 S.W. 3d 818, 819 (Tex. Crim.

App. 2005)(even if parties have plea bargain as to punishment if adjudication occurs,

the trial court is not bound to follow said agreement) & Von Schounmacher v. State, 5 S.W.

3d 221, 223 (Tex. Crim. App. 1999)(regardless of whether deferred adjudication was

part of plea bargain and contained a sentence recommendation for sentence at

adjudication, when adjudication occurs trial court is restricted in sentence only by

statutory limits).

        In Broadway, this Court recognized that there are some plea agreements between

defendants and the state that do not fall within the definition of “plea bargain” in Rule

25.2(a)(2). Broadway, 301 S.W.3d at 698, 699; Tex. Rules App. Proc. 25.2(a)(2). That rule

defines a plea bargain as:

       [A] case in which a defendant’s plea of guilty of nolo contendere and the
       punishment did not exceed the punishment recommended by the
       prosecutor and agreed to by the defendant….

Tex. Rules App. Proc. 25.2(a)(2). The rule provides in those cases the defendant cannot

appeal without permission from the trial court. Id.

       Broadway’s circumstances were almost identical to Delaney’s. He was facing a

punishment range of 25 years to life in prison. Broadway, 301 S.W.3d at 696. The state’s

recommendation was 25 years, the minimum, in exchange for a plea. Id. He rejected the

                                           10
state’s offer, waived his right to appeal and entered an open plea to the trial court in the

hopes of the court granting him deferred-adjudication community supervision and drug

treatment. Before Broadway entered his plea, the trial court told him his options: “Jury

trial or you could take a plea bargain, which is a minimum of 25 years in prison or do

an open plea which [would] allow me to consider giving some kind of drug treatment

on probation.” Id. At punishment, the judge sentenced him to 25 years. Id.

       Broadway filed claims of ineffective assistance of counsel on the grounds that

his attorneys did not inform him of his right to appeal and that they let him waive his

right to appeal. Id. One of his lawyers filed an affidavit for the evidentiary hearing stating

that Broadway had “waived his right of appeal in order to induce the [S]tate to waive

its right to force a jury trial in order that he could ask the court to give him deferred

probation with drug treatment.” Id. The trial court included that assertion in his findings

of facts and conclusions of law, concluding Broadway had knowingly and voluntarily

waived his right to appeal before pleading; the court recommend against relief.

       This Court set the case for submission “to determine whether a defendant can

voluntarily waive his entire appeal as part of plea, even when sentencing is not agreed

upon, where consideration is given by the State for that waiver.” Id.

       In finding that Broadway did voluntarily waive his entire appeal, the Court

distinguished his circumstances from Delaney’s. The Court pointed out that there was

no bargain in Delaney, whereas in Broadway, although he had rejected the state’s plea

offer, there was a “bargain of a different sort.” Id at 697-98. Because the state had not
                                             11
wanted to agree to Broadway’s waiving a jury trial after he had rejected its plea bargain

offer, the trial court found the applicant had “induced the State to consent [to

permitting him to waive a jury trial].” This Court agreed the state’s consent, under those

circumstances, constituted consideration, holding his waiver was knowing because he

“knew the consequences of his waiver.” Id at 698.

B.     Analysis

       In Mr. Jones’s case, there is no evidence of a bargain such as the one in Broadway.

The mere fact that the state abandoned the second enhancement paragraph does not

indicate that the plea waiver was given in exchange for the abandonment. Mr Jones

initialed paragraph 3 in the preprinted omnibus admonishments signed before entering

his plea, even though it was inapplicable to his case, since he was intending to plead

without an agreed sentencing recommendation (C.R. at 56-57). He signed the

boilerplate plea form, “Waiver of Constitutional Rights, Agreement to Stipulate and

Judicial Confession,” which negates the existence of a recommendation by the

prosecutor with a handwritten “WOAR” in the blank provided for the terms of the plea

bargain the form was designed to anticipate (C.R. at 54). Further, the boilerplate waiver

of appeal is conditioned on the court’s accepting “the foregoing plea bargain between

myself (sic) and the prosecutor.” (C.R. at 54). There was no “foregoing plea bargain.”

       The court of appeals characterizes the document following the plea papers as

though it were one of the plea papers but it bears no indications that it is anything other

than what it says it is: “Plea Information” (C.R. at 61). It certainly does not “memorialize
                                            12
[the prosecution’s] agreement to drop the enhancement in exchange for Jones’s plea

without an agreed recommendation.” Jones, 2015 WL at *2. There is simply no evidence

supporting such an agreement. Further, Broadway endorses a bargain wherein

consideration is given by the state for the defendant’s waiver of appeal, not his plea.

Broadway, 301 S.W.3d at 696 and passim.

      Finally, although Mr. Jones signed the trial court’s certification indicating he had

waived his right to appeal, there is no way of knowing whether the box indicating waiver

was checked prior to his plea or when the judge accepted it.

      This Court reiterated its consistent position regarding pretrial and presentencing

appeal waivers as recently as 2012, stating “…when a defendant waives his right to

appeal before sentencing and without an agreement on punishment, the waiver is not

valid.” Washington v. State, 363 S.W.3d 589-90, (Mem) (Tex. Crim. App. 2012). In her

concurring opinion in that case, Chief Justice Keller wrote:

      Although Delaney involved a waiver of appeal at the original guilty plea,
      before adjudication was deferred, rather than at the adjudication hearing,
      the rationale for holding the waiver to be involuntary in Delaney was “the
      concern that unanticipated errors may occur at the punishment phase of
      trial.”5 The same concern exists here. I therefore agree with the Court that
      the rationale in Delaney applies in this case and that appellant's waiver was
      invalid.

Id at 590-91 (citations omitted).

      In this case, the trial court, in the first plea colloquy, misinformed Mr. Jones as

to the range of punishment he would face at the punishment hearing (2 R.R. at 5). The

court was mistaken in two ways. The prior aggravated assault on a family member
                                           13
paragraph is not a punishment “enhancement.” The prior conviction for assault of a

family member, second offender, is an element of §22.01(b-1), which makes assault a

second-degree felony if (1)the offense is committed against a family member; (2)the

defendant has been previously convicted of assault of a family member; and (3)the

offense is intentionally, knowingly, or recklessly impeding normal breathing. Tex. Penal

Code, §22.01(b-1)(1), (2), and (3). The punishment range for a second-degree felony is

two to 20 years in prison.

          The remaining prior felony conviction allegation is an enhancement paragraph

that increases the second-degree felony punishment range from two to 20 years to that

of a first-degree felony, namely five years to 99, or life in prison. Tex. Penal Code,

§12.42(b). The court, therefore also misstated the range of punishment Mr. Jones was

facing.



          In the second colloquy, the trial court arrived at the correct range of punishment

but again misstated the legal situation--he described a third-degree offense with two

prior felony enhancements, when in fact the offense with which Mr. Jones was charged

is a second-degree felony with one prior felony enhancement. 2




2
 The judgment correctly stated the charge was a second-degree felony; however it indicated that there
had been only one enhancement and it was abandoned (C.R. at 91). These issues were addressed in
petitioner’s brief on appeal.
                                                 14
      These errors are precisely the type that have concerned this Court about pretrial

waivers of appeals all through line of cases beginning with Smith and Dickey and

continuing through Delaney and Washington.

                                         Prayer

      Petitioner asks the Court to reverse the First Court of Appeals’ dismissal of his

appeal because the record does not support that court’s finding that the state bargained

for the pre-punishment waiver of appeal. He further asks that the Court remand his

case to the court of appeals and order all appropriate relief.


                                         Respectfully Submitted,

                                         ALEXANDER BUNIN
                                         Harris County Public Defender

                                         /s/ Melissa Martin
                                         ______________________________
                                         MELISSA MARTIN
                                         Assistant Public Defender
                                         1201 Franklin, 13th Floor
                                         Houston, TX 77002
                                         Phone 713-274-6709
                                         Fax 713-437-4319
                                         Texas Bar No. 24002532
                                         melissa.martin@pdo.hctx.net




                                            15
                           CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing Petition for Discretionary Review was e-

served to Alan Curry, Assistant District Attorney, Harris County Texas and to the State

Prosecuting Attorney.

                                         /s/Melissa Martin
                                         _______________________________
                                         MELISSA MARTIN



                        CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.      Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 3,811 words printed in a proportionally spaced typeface.
2.    This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by Microsoft
Word software.
3.      Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4.   Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.


                                                /s/ Melissa Martin
                                                ____________________________
                                                MELISSA MARTIN

                                           16
                                           ',-j. 

                                            "
                                            (
                                                "                                               ,   ""'




     <t6
'.   THE s1A"TE OF TEXAS                                       01221455 
                           D.A. LOG NUMBER: 1965798
     VS.                                                                                            CJIS TRACKING NO~ ·: 

     ANDREW OLEVlA JONES                              SPN:                                          BY:· AC DA NO·; 002501772 

     5827 W. TII)WELL                                 DOB: fiM 11/25/73                             AGENCY:HPD 

     HOUSTO~, T'X                                     DATE PREPARED: 61712013                       OIR NO: 65596513Y 

                                                                                                    ARREST PATE: TO BE 

     NCIC COQE: 139903                                RELATED CASES:
     FELONY CHARGE: Assault of Family Member Second Offender and 'mpeding Bre~~hingAssault of Family Member Second
     Offender                                                    .                 '
     CAUSE NO:·                                      1390646                   BAIL: $NO BOND 

     HARRIS COUNTY DISTRICT COURT NO:                338                       PRlOR CAUSE NO:' 

     FIRST SETTING D,A TE: 



     WAIVER OF CONSTITUTIONAL
                 .
                              .RIGHTS, AGREEMENT TO STIPULATE, AND iUDiCIAL
                                                                         .
                                                                            CONFESSION

     In open court an9 prior ~d'~n~eting my"plea, i'waive the right of trial by jury. I also waive the appearance, confrontatio~ and cross-examination of
     witnesses, and my right against seif-ln~tion. The charges against me allege that in Harris County, Texas, ANDREW OLEVlA JONES,
     hereafter styled the Defendant, heretofore'on or about MA Y 27, 2013, did then and there unlawfi,llly, intentionally and knowingly cause bodily
     injury to GABRlEL JONES~ hereafter styled the Complainant; a member of the Defendant's family, by impeding the normal breathipg or
     circulation ofth_e bIo~d of the Complainaht by applying pr~ssur~ to the Complainant's neck.

     It is further-presented iliat, before the.commiss·ion alleged above, the Defendant, on JANUARY 17,2008, in the 232ND DISTRICT COURT of
     HARRl~. COWlty, Texas, in Cause Number 1] 30503, was convict~d of AGORAVATED ASSAULT OF A FAMILY MEMBER, which was
     committe.d against a member ofthe Defendant's fami Iy:

     Before the commissio.n. of the off~nse~)leged above, (hereafter'styled the primary offense), on OCTOBER 29, 1992, in Cause Number 646478, in
     the 174THDISTlUCT C,OURT of HARRIS County, Texas, the Defendant was ~onvicted of the felony of AGGRAVATED ROBBERY.




     AGAINST THE PEACE .ANDDIGNITY OF THE STATE.
                                                                                                                     /




                                                                  APPENDIX 

                                                                                                               RECORDER'S MEMORANDUM
                                                                                                               This instrument is of poo~ality
                                                                                                                    attha time of ima9i~
                                         /'",------ ......~


                                         !\~ •                •




  I Understand the above' allegations and' I·confess that they are true ~d that the acts alleged aQove were committed on


  In open court I consent ~o the 'oral' and' written stipulation of evidence in this case and to the introduction of affidavits, written statements, of
witnesses, and other documentary evidence. I am ~at,isfjed that the a~orney representing me today in court has properly represented me and I
have ~lly discu~sed Plis case with him.

I intend to enter a plea of guilty and the'prosec1fto'r'~~U recomniend that my pun'ishment should be set at -=------:._ _ _ _ _"""":""""~~-=-=--~




and I agree to that rec,ommendation. I waive aPy further time to prepare for trial to' which I or my attorney'may be entitled. Further, I waive any
right of ~ppeal which I 'may have'should:the court accept the foregoing plea bargain agr~ement between myself and the prosecutor .



                                                                                               .)ti~~t!£~~
                                                                                               ~~FENDANT
                                                                                                                                            .
Sworn to and   S~bscribed before me     on_' __                   ~_+-I_\-~--1I~()~O---l-I_'1-t-_·. ____




                                                                                                   '.~                 

DEFENDANT'S ATTORNEY (PRIND                                                                    SIGNATURE OF DEFENDANT'S ATIORNEY

  I consent to and approve,the'above,waiver oftri;ll by jury~d stipuJation of evidence




This document was executed byth'e defe,ndant; his attorney, and the attorney representing the State, and then filed with the papers of the case.
The defendant then came, before m.eand IapPfoved the above and the defendant entered a plea of guilty. After I admonished the defendant of the
consequences of his plea, I asce~,inedth51t 'he entered it knowingly and voluntarily after discussing the case with his attorney. It appears that the
defendant is ~entilly competent: and the plea i,s free and voluntary. I find that the defendant's attorney is competent and has effectively
represented the defendant'inthis case. 'I infonned the defendal1t that l would l10t exceed th~ ~greed recommendation as to punishment.

                         ~lL                                                                                .
                             Chr;        ~b
                          O/"t,f.:f~;::~~
               17",..
                   ..    MAR /'9 211)    ul'i
                    ~H.f11"C
             By-        . .;
                       OCl"tY,
                               , .
                                 .

                             Oepfitj,
                                        ,1.~.,

                                                                                  PLEJ\ OF GUILTY
                                                                                                                                   54
                                  CAUSE NU~·tBER         } ~SD c,y,(p 


 THE STATE OF'TEXAS                                           fN THE 33S 'h DISTRlCT COURT 


 V. 	                                                         OF 


  I:\rvX-:{Jd        ~J                                       HARRIS COUNTY, TEXAS 


                                           PLEA .-\i>~IONtSH~IENTS

 Pursuant to Article 26.13 of the T~xas Coqe of Criminal Procedure, the Court hereby admonishes in
 wri ti ng the Defendant in the above-captioned cause of action as follows and instructs the Defendant to
 place his initials by each of the following admonitions to indicate that he fully understands each
~ttion.

~.               You are charged with the felony criminal otfense of     ih:'b<.l \t ~Ll ~ b\.e:--­
                                              "J7~J¥d,#
                                                  1
                                                        ~1kI~
        2.       The State moves to reduce such charge to the felony / misdemeanor offense of _ _ _ __



             If convict~d of this offense. you face the following range of punishment:

          FIRST DEGREE F ONY: a tenn of life or any tenn of not more than 99 years or less than 5
years in the Institutional Di . ion of the T. s Department of Criminal Justice and. in addition. i.l
poss i ble tine not to exceed $10. O.

                                           ~nhanced
                                              with one prior felony conviction): a tenn of life or any
term of not more than 99 y rs or less than 15 yt!ars in the [nstitutional Division of the Texas
Department of Criminal Just' e and, in dition. a poss.ib/e tine not to exceed S 10.000.

             SECOND DEGREE fELONY:            J   tenn of not more than 20   \'~ars   or kss than 2 ycars in the
fnstitutional Division of the Texas Departm~nt of Criminal Justice and: in addition. a possibl'e tine nor       [0
~xceed S10.000.                                                                                    .
                                                                                                 .
         SE€OND DEGREE FELONY (~nhanced with one prior felony conviction): a tenn of life or any
[~rm of not more th'J-n 99 y~ars or less than 5 yc=ars in [h~ Institutional Division of the Tc=xas Department
uf C ri m.inal Justice and. in addition~ a possible !il1e not to ~xceed S10.000.

          rHIRD DEGREE FELO~Venn of not more than 10 \'~ars or kss than 2 \'~ars in the
Institutional Division of the Texas ~ment oiCriminal Justice and. in Jddition. a possible rine not to
..::x~e~d S10.000.




                                                                                                         55 

_ _ _ HABITUAL FELONY OFFENDER: a tenn of life or any tenn of not more th
        ars in the Institutional Division of the Texas Department of Criminal lusti .

                 DEGREE FELONY (enhanced with one prior felony convict' n): a term of not more
than 20 years or ess than 2 years in the Institutional Division of the Te, Department of Criminal
Justice and, in addi ' n, a possible fine not to exceed $10,000.

         STATE JAIL F ONY: a tenn of no~ more than 2 years or Ie         than 6 months in a State lail and,
in addition, a possible tine t to exceed $10,000.

_        HABITUAL STATE J L FELONY: any tenn of t more than 20 I 10 years or less than 2
years in the Institutional Divisio of the Texas Depart nt of Criminal Justice and, in addition. a
possi ble tine not to exceed $10,000.

         STATE JAIL FELONY WITH A                       WEAPON OR A PRIOR CONVICTION FOR A
30 OFFENSE UNDER ART. 42.1 -2,:COO                    IMINAL PROCEDURE: a term of not more than 10
years or less than 2 years in the [nstitutional . ision of the Texas Department of Criminal Justice and,
in addition, a possible tine not to exceed SID ' 00.

                                                           PENAL CODE SECTION 12.44 (a): a felony
~onviction   punished as a misdemean      by a term of n     more than one year in a county jail and a
possi ble tine not to exceed S4,000.

__                                  SENTENCED                        L CODE SECTION 12.44 (b): a
tnisdemeanor conviction pun' hed by a tenn of not more than one ear in a county jail and a possible
tine not to exceed $4,000.                                            "

                          E~1EANOR: a misdemeanor conviction punishe by a tenn of not more than
one year in a count Jail and a possible tine not to exceed $4,000.

_                   ~flSDE~tEANOR: a misdt!meanor conviction punished by a tenn of not more than
180 Jays ye    in a county jail and a possible tine not to exceed 52.000.

         THER: the range of punishment is by continement in the Institutional Division
Oepan nt of Criminal Justice I county jail (circle one) for any tenn of not more than      years and
not less than         years: in addition there is a possible I mandatory (circle 0ne) not to exceed
5- - - - - - ­
          \,




    tlb
      2,     PLEA BARGAINS: If no plea bargain agreement exists. the recommendation of the
arosecuting attorney is not binding on the Court. If a plea bargain agreement does exist. the Court \\ii 11
inform you whether or not it will follpw that plea bargain agree"ment berore making any tinding on your
plea. Should the Court reject the plea bargain agreement. you will be permitted to withdraw your plea.
if you so desire.

U     J.    PERyliSSION TO APPEAL: [f the punishment assessed by the Court .ioes not exceed the
punishml!nt recommended by the prosecuting attorney and agreed to by you and your attorney. the Court



                                                                                               56 

      ,.                                                                        /   -"   ,




 /
:-.
                                                                                i
                                                                                ~ ,I
                                                                                             '




           , must give its permission to you before you can appeal any matter in the case, except for matters that
             \vere raised by written motion filed prior to trial.

           114,       C[TIZENSH[P: [f you are not a citizen of the United States of America, a plea of either
           Guilty or Nolo Contendre (no contest) for this offense may result in your deportation, or your exclusion
           from admission to the country, or the denial of your naturalization under applicable federal law.

           U      5,    DEFERRED ADJUDICATION: If the Court defers adjudicating your guilt and places you
           on community supervision, upon any violation of any imposed condition of your community
           supervision. you may be arrested and detained as provided by law. You will then be entitled to a
           hearing limited to the detennination by the Court of whether or not to proceed with the adjudication of
           your guilt on the original charge. No appeal may be taken from this determination. After an
           adj udication of guilt, all proceedings, including the assessment of your punishment and your right to
           appeal, continue as if adjudication of guilt had not been deferred.

           lL6.         WAIVER OF PRE·SENTENCE REPORT: As the Defendant accused of a felony criminal
           offense in the above·captioned cause of action I have consulted with my attorney, whose name is signed
           be low. regarding the application of Article 42.12( 9)(a) of the Texas Code of Criminal Procedure to my
           case which provides that, prior to imposition of sentence ,by the Court, the Court shall direct a
           community supervision onicer to repon to the Coun in writing on the circumstances of the offense with
           which I am charged. including my criminal history, if any, and my social history. [understand that tht:
           Court is not required to order such a repon if the only available punishment is imprisonment. tUliess I
           request that such a report be made. I hereby do knowingly and voluntarily waive my right to the
           preparation of a report by a community supervision ofticer and expressly request that such a report not
           be prepared, except as may otherwise be required by law.

           ~7.          DRIVER'S'LICENSE:'Your driver's license may be suspended as a result of the disposition
           of this case. rn certain circumstances. you may be eligible to receive a restricted driver's license during
           the period of suspension at the discretion of the Court.

           US,            Comes now the defendant. joined by my Jttomey, and hereby states that the foregoing
           . \dm~nishments. Statements, and \Vaivers. as well as the attached written \Vaivcr of Constitutional
            Ri ghrs. Agreement to Stipul-ate 'and Judicial Confession. were read by me or read to me and were
           ~:'(pJained [0 me in the language that I read. write. or understand by my attorney. and / or an int~rpreter.
           namely                                            "before I signed them. I further state that l fuJ ly
           understand the foregoing AJmonishm~nts. Statements. and \Vaivers. as well as [he attached written
            \Vaiver of Constitutional Rigfi~s. Agreement to Stipulate and Judicial C;onfession. and that I am aware of
           <In'd fully understand the consequences of my plea. I \vaive the right to have a court reporter record my
           plea of Guilty or ~olo Contendre (no contest) or True. I further state that I am mentally competent. [hat
           I fully understand the nature of the ~harges against me. and that my plea is t'reely~ knowingly, Jnd
           \'oluntarily entered. If my attorney was appointed by the Court, I hereby give up and waive any right I
           may have to wait to prepare for trial. r state that [ Jm totalJy satistied with the representation given to
           me by my Jttomey. Jnd that in my opinion he or she provided fully dTective lnd competent
           representatIOn. I waive and give up under Ankle 1.1 ~ of the Texas Code of Criminal Proct!dure any and
           III ri ghts given to me by law \\'hether of tonne substance. or procedure. Joined by my attorney. I \\'aive
           ;lnd give up my right to a jury trial in this ~ase as well as my right to require the appearance,



                                                                                                                57
confrontation and cross-examination of witnesses. I waive and give up any right of contidentiality that I
may have as to the pre-sentence report tiled in this case and agree that' the report may be publicly filed. I
consent to the oral and written stipulations of evidence in this case.

~9. J'DICIAL CONFESSION: I hereby state that I have read or have been read the indictment or
~~n            filed in this case, and r confess and admit thaI I committed each and every allegation
contained therein. I state that I am guilty of the offenses alleged, as well as any and all lesser included
offense. I hereby swear to all the foregoing, and I further sweat that all testimony that [ give in this case
wi 11 be the truth, the whole truth, and nothing but the truth, so help me God ..



                                                            ~tWL~
                                                           Defendant

SWORN TO AND SUBSCRIBED BEFORE ME ON THIS DATE:                                     _\U.-V1

                                                           Deputy District C ierk
                                                           Harris County, Texas

We join and approve the waiver of jury trial pursuant to Article 1.1.3 of the Texas Code of Criminal
Procedure and the stipulations of evidence pursuant to Article 1.tS of the Texas Code of Criminal
Procedure. In addition, the Court hereby tinds as a fact that the Defendant herein is fully mentally
competent. and that his or h~r plea is freely, 'knowingly and voluntarily entered.


                                                                                      -   ;

/\ttomey for Defendant                                     A ttorney for De fendant
( signature)                                               (printed name




                                                                                                58 

STA TE OF TEXAS 	

v. 	
                               _auseNo.             /   310t~'
                                                            §
                                                            §
                                                            §
                                                                                •
                                                                              IN THE 335       DISTRICT COURT


                                                            §
                                                            §                OF IlARRIs COUNTY, TEXAS
Defendant

                            ADVICE OF DEFENDANT'S RIGHT TO APPEAL

The Court, pursuant to Tex. R. App. P. 25.2, 'advises the Defendant as follows:
1. 	 Texas law gives a defendant convicted of a crime the right to appeal his conviction.
2. 	 If you pleaded guilty or DO contest and accepted the punishment recommended by the prosecutor, however,
     you cannot appeal your conviction unless the Court gives you permission. If you waived or gave up your right
     to appeal, you cannot appeal your conviction.
3. 	 If you did not plead guilty, you may have the right to appeal. If you want to appeal, you must give notice of
     appeal in writing to this Court's clerk within 30 days.
4. 	 If an attorney represents you in the court of appeals, your attorney must mail a copy of the court of appeals'
     judgment and opinion to your last known address. You must tell your attorney in writing of any change in
       your address.
5. 	 If you are not satisfied with your appeal's result, you can ask the Court of Criminal Appeals to review your case
     by filing a petition for discretionary review in the Court of Criminal Appeals within 30 days of the issuance of
     the opinion by the court ,of appeals. If you fai I to inform your attorney of any cbange in your address, you may
     lose the opportunity to seek discretionary review.

The Defendant declaru tbe foUowing to the Court (choose one): 	              ~    )
I. 	   'i-I read and write English. I have read and 1 understand this docume~(Defendant initial here if
     true); or
2. 	 0 I speak English.                                          (name reader) read this document to me. I understand
     its contents.            (Defendant initial here if true); or

3. 	                                                                (name translator) translated this document for me.
                               ~_ _ _(Defendant initial here if true).




Defen          19nature 	
Sworn to and subscribed before me on      :6 J \9'J Qo 1j

~~i~QO\~
                                               I        '




                                                                                                  Harris County, Texas




                                                                                                        Revis~12112
e·                                       •	        Cause No.       13106C1-6
                                                                                            •

THE STATE OF TEXAS 	                                                           IN THE '"3 ?'8 DISTRICT COURT

v. 	                                                                          -C9UNfi' CIUNllNAL € & uRT l..'J'-I:d\W             No.   ­
A_'_r}~~_--=~:::.-~
              _ _ _ _ , Defendant
                         	                                                     HARRIS COUNTY, TEXAS


          TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF ApPEAL*

I, judge of the trial court, certify this criminal case:
       o	     is not a plea-bargain case, and the defendant has the right of appeal. [or]
       o	     is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial, and
              not withdrawn or waived, and the defendant has the right of appeal. [or]
       o	     is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the
              right of appeal. [or]
              is a plea-bargain case, .,. .... ~"""n.,. defendant has NO right of appeal. [or]
              the defen       t




Judge
                                                                                                                 -"'­   cOfIIJ

I have receive         y of this                 I have also been informed of my rights con"" . Ij,                              ~"ap
this criminal case,           any right to file a pro se petition for discretionary review pursuan to . . '-y.• ....-1oLJ
Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the Cburt of
appeals's judgment and opinion to my last known address and that I have only 30 days in which to file a pro se
petition for discretionary review in the Court of Criminal Appeals. TEX. R. APP. P. 68.2 I acknowledge that, if I
wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written
communication, of any change in the address at which I am currently living or any cbange in my current prison
unit. I                a,          of appellate deadlines, if I fail to timely inform my appellate attorney of any
ch     e in my address, I may lose the     ortunity to file a pro se petition for discretionary review.



                                                                           Defendant's Counsel 


                                                                           State Bar of Texas ID number: 

Telephone number: _ _ _ _ _ _ _ _ _ _ _ __                                 Mailing Address:

Fax number (if any):                                                       Telephone number:            ~l\j f '2. S-6 - &'71C,
                                                                           Fax number (if any):          1,,:>   I ~bl - ~c,.;.-).
 • "A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant's
 right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in
 which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the
 prosecutor and agreed to by the defendant - a defendant may appeal only: (A) those matters that were raised by a written motion filed
 and ruled on before trial, or (B) after getting the tria1 court's pennission to appeal." TEXAS RULES OF APPELLATE PROCEDURE
 25.2(a)(2).                                                                                                                60
                                                                                                ,,'




Case #        i 5Cf otCf t 

          ----------------------------

Defendant Name                                     t!neh.w                            ~.L-S' 

                        I
                                                   -            --                 - '-   ._.                  -   -"   -­
   - ' _. ..-_.- - - ' - ._". _-   "   -   '   .       --   .        .   . , ..,




prea information
             A~""~ ~ @? '71;>1 pU k.                                                                  f'7,I:       [..bAI2­




D. A. Name:l!l.&                                   2i,z1~ 





                                                                                                           RECORDER'S MEMORANDUM
                                                                                                           This instrument is of poor quality
                                                                                                                 at the time of imaging




                                                                                                                                            61
