                                                            June 25, 2015

                          NO. PD-0641-15

        IN THE TEXAS COURT OF CRIMINAL APPEALS
                       AUSTIN TEXAS
_____________________________________________________________

      JIMMY EUGENE JOHNS, PETITIONER/APPELLANT

                                   vs.

       THE STATE OF TEXAS, RESPONDENT/APPELLEE

_____________________________________________________________

    ON APPEAL FROM THE COURT OF APPEALS FOR THE
       SECOND DISTRICT OF TEXAS (FORT WORTH)
    CAUSE NO. 02-14-00233-CR, AND FROM THE CRIMINAL
       DISTRICT COURT NO. 1 OF TARRANT COUNTY
                    CAUSE NO. 1332690D



  PETITION FOR DISCRETIONARY REVIEW OF APPELLANT
                JIMMY EUGENE JOHNS



Gerald R. Smith, Sr.                     Cynthia Rowe D’Antonio
State Bar No. 24039316                   Oklahoma Bar No. 19652
Law Offices of Smith & D’Antonio         Green, Johnson, Mumina
P.O. Box 200395                          & D’Antonio
Arlington, Texas 76006                   400 N. Walker Ave. Ste. 100
Telephone: (817) 462-4036                Telephone (405) 702-7228
Facsimile: (817) 462-4037                Facsimile (405) 702-6898
attorney@gjsmithlaw.com                  cynthia@gjmlawyers.com
                                          Admission pro hac vice

    ATTORNEYS FOR PETITIONER JIMMY EUGENE JOHNS
        PETITIONER REQUESTS ORAL ARGUMENT


                                   1
                                  TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ................................................... 1

INDEX OF AUTHORITIES ............................................................................ 3

STATEMENT REGARDING ORAL ARGUMENT ...................................... 4

STATEMENT OF THE CASE ........................................................................ 4

STATEMENT OF PROCEDURAL HISTORY .............................................. 7

ABBREVIATIONS .......................................................................................... 8

QUESTIONS PRESENTED FOR REVIEW ................................................... 8

ARGUMENT IN SUPPORT OF REASONS FOR REVIEW ......................... 9

I.               THE COURT OF APPEALS OVERSTEPPED ITS
                 BOUNDARIES WHEN IT DICTATED THE CONTENTS
                 OF THE AMENDED CERTIFICATE FOR APPELLANT....... 10

                 A.     It Was Error For The Court Of Appeals To Dictate
                        To The Trial Court That This Was A Plea Bargain Case ... 10

                 B.     The Court of Appeals Abatement Order Mandating
                        That The Trial Court Certify A Plea Case Impermissibly
                        Limited The Trial Court To Find Otherwise ....................... 12

II.              APPELLANT’S APPEAL RIGHTS WERE UNLAWFULLY
                 ABRIDGED BY THE UNDERLYING PROCEDURAL
                 ERROR ....................................................................................... 14

PRAYER FOR RELIEF ................................................................................... 15

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

CERTIFICATE OF SERVICE ......................................................................... 17



                                                     2
APPENDIX ...................................................................................................... 18

                                 INDEX OF AUTHORITIES

Cases

Chavez v. State,
  183 S.W. 3d 675 (Tex. Crim. App. 200) ..................................................... 10

Cortez v. State, 420 S.W. 3d 803 (Tex. Crim. App. 2013) ............................... 14

Dears v. State, 154 S.W. 3d 610 (Tex. Crim. App. 2005) ................................ 14,15

Flores v. State,
   888 S.W. 2d 193 (Tex. App.-Houston[1st Dist.] 1994 ................................ 13

Greenwell v. Court of Appeals for the Thirteenth Dist.,
  159 S.W. 3d 645 (Tex. Crim. App. 2005) ................................................... 11,12

Johnson v. State,
   47 S.W. 3d 701 (Tex. App. –Houston [14th Dist] 2001 .............................. 13

Marsh v. State,
  ___S.W. 3d__(Tex. Crim. App. October 1, 2014, PD-1034-13)................. 11,12

Menjivar v. State, 264 S.W. 3d 137 (Tex. App. 2007) .................................... 11

Miller v. State,
  11 S.W. 3d 345 (Tex. App. –Houston [14th Dist.] 1999 ............................. 13

Wilson v. State,
  264 S.W. 3d 104 (Tex. App. 2007) ............................................................. 11

Rules

Tex. R. App. P. 25.2(a)(2) ................................................................................ 10,11

Other Authorities




                                                      3
To The Honorable Court Of Criminal Appeals of Texas:

           STATEMENT REGARDING ORAL ARGUMENT

      Petitioner believes oral argument would be helpful to the Court in

resolving whether the Court Of Appeals overreached itS authority under

Tex. R. App. P. 25.2(a)(2) when it expressly dictated to the Trial Court to

find this was a plea bargain case. While other cases have addressed the issue

in the context involving the legal merits of an issue in a case, this appears to

be an issue of first impression as to whether the Court Of Appeals may

actually dictate that the Trial Court find a case itself to be a plea bargain case

despite a questionable or contrary record below.          Moreover, the public

policy behind resolution of this issue could best be discussed in the context

of oral argument wherein the benefit of an exchange with the Court and

counsel would better suit the advancement of fundamental matters raised in

this discretionary review.


                       STATEMENT OF THE CASE

      Appellant, Jimmy Eugene Johns, was indicted by a Grand Jury on

June 2, 2013, of driving while intoxicated (DWI). The indictment further

alleged that Appellant had prior convictions for the same offense and other

charges and was a habitual offender. (CR05-06). Appellant suffers from

severe alcohol addition and became eligible for the Felony Alcohol

                                        4
Intervention Program (FAIP). (CR18). On February 10, 2014, Appellant

entered an Open Plea to the trial court on a recommendation that the State

proceed on a repeat offender charge. (CR42-46). The trial court found

Appellant guilty of DWI as repeat offender as true and deferred sentencing

pending a presentence investigation. (CR47). On April 1, 2014, Appellant

personally appeared for sentencing and judgment of the conviction pursuant

to his Open Plea to the trial court of DWI and felony repetition. (CR47).

Appellant was assessed punishment of eight (8) years at TDCJ. (CR47). On

April 1, 2014, the Trial Court’s Certification Of Defendant’s Right Of

Appeal was made. (CR57). That initial Certification expressly stated that

the matter “is not a plea-bargain case and the defendant has the right of

appeal.” (CR57). The trial court’s Certification was signed by Appellant, his

legal counsel and the presiding judge. (CR57).

      With respect to the Certification, it recited Tex. R. A. P. 25.2(a)(2)

regarding plea bargain, noting conditions for appeal to include obtaining

permission from the trial court in certain instances. (CR57). On the same

day of his conviction and sentencing, Appellant filed his Notice Of Appeal,

Motion For Reporter’s Record (CR58). On April 10, 2014, Appellant filed a

Supplemental Notice Of Appeal, Request For Clerk’s Record and

Designation Of Materials To Be Included In Clerk’s Record. (CR61-70). On



                                     5
April 11, 2014, Appellant moved to set bond pending his appeal (CR75-76),

and the trial court set bond in the amount of $10,000, and the appeal bond

was issued on April 17, 2014. (CR78-79). Thereafter, Appellant remained at

large pending his appeal.     On June 2, 2014, the Clerk’s Record was

delivered to the Court of Appeals (CR01).

      On March 2, 2015, the Court of Appeals issued its Abatement Order

of Appellant’s Appeal citing that it was concerned about whether the appeal

must be dismissed because Appellant entered a plea bargain. Abatement

Order, March 2, 2015)(Supplemental CR 4-7). The Abatement Order noted

that the “certification states that appellant has the right to appeal.”

(Supplemental CR5). The Abatement Order sought to have the trial court

correct the certification to comport with the record. (Supplemental CR6). In

the Abatement Order, the Court Of Appeals expressly dictated that “[o]n or

before April 1, 2015, the trial court shall file an amended certification of

appellant’s right to appeal showing that this is a plea-bargained case.”

(Supplemental CR6)(emphasis added). It further commands that “the trial

court shall indicate whether any matters were raised by written motion filed

and ruled on before trial or whether the trial court has given permission to

appeal.” (Supplemental CR6). Finally, the Court of Appeals directed that

“[t]he trial court, appellant, and appellant’s counsel shall sign the amended



                                     6
certification….” and “the trial court shall use whatever means necessary to

secure a complete, proper amended certification….” (Supplemental CR6).

Therefore, the trial court revoked Mr. Johns’ previously granted appeal bond

and placed him in custody, apparently in order to obtain his signature on the

amended certification. On March 19, 2015, the Court Of Appeals received a

Supplemental Clerk’s Record that contained an Amended Certification of

Appellant’s Right To Appeal. (Supplemental CR8).         As dictated by the

Court of Appeals, the Amended Certification was made on March 16, 2015,

and states “this is a plea-bargain case, and Jimmy Eugene Johns has NO

right of appeal.” (Supplemental CR8). Additionally, the Amended

Certification contains the notation that Appellant refused to sign the

Amended Certification. (Supplemental CR8).         Based on the Clerk’s

Supplemental Record, including the Amended Certification, on April 23,

2015, the Court of Appeals issued its Memorandum Opinion whereby

Appellant’s appeal was dismissed. Appendix “A” Memorandum Opinion

dated April 23, 2015 (hereinafter “Memorandum Opinion.”).


             STATEMENT OF PROCEDURAL HISTORY

1.    Date Of Opinion From Court Of Appeals:                April 23, 2015

2.    Date Of Motion For Rehearing:                         None Filed

3.    Date Motion For Rehearing Disposed:                   N/A

                                     7
4.    Date Of Appellant’s Motion For Extension Of Time        May, 28, 2015

5.    Order Granting Appellant’s Motion For Extension         May 28, 2015

6.    Appellant’s Petition For Discretionary Review           June 25, 2015
      Pursuant to Rule 68 of Texas R. of App. Procedure


                ABBREVIATIONS AND REFERENCES

      The required documents and other relevant and material documents

are attached to this Petition in the Appendix. The pages of the Appendix are

numbered in accordance with their original pages and therefore are not

sequenced.


      The Clerk’s Record (CR) is referred to by page number (e.g. CR000);
and the Supplemental Record is referred to by page number (e.g.
Supplemental CR000.)


              QUESTIONS PRESENTED FOR REVIEW

1.    Whether Tex. R. App. P. 25.2 permits the Court Of Appeals to dictate
      that the trial court find case to be a plea-bargained case.

2.    Whether the Court of Appeals impermissibly exceeded its authority
      when it directed that the trial court find Appellant’s case to be a plea-
      bargain case despite all evidence that the matter involved an open plea
      by Appellant with a right to appeal.

3.    Whether Appellant could have been properly admonished by the trial
      court under an arrangement whereby Appellant understood he was
      making an open plea with a right of appeal.




                                      8
               APPELLANT’S REASONS FOR REVIEW

1.    The Court of Appeals’ Memorandum Opinion dismissing the Appeal
      conflicts with previous related decisions on a similar issue.

2.    The Court of Appeals has erroneously decided an important question
      of Texas law regarding a fundamental certification of appeal issue that
      should be settled by this Court.


                                ARGUMENT

      Appellant, Jimmy Eugene Johns, is currently incarcerated with no

apparent right to appeal his sentence and conviction despite substantial

evidence at the trial level that he would maintain his appeal rights. Indeed,

each and every participant at the trial level, including the trial judge, counsel

for the State of Texas, counsel for Appellant and the Appellant, proceeded

on the understanding and basis that Appellant had appeal rights following

his conviction. The underlying record is replete with expressed and

circumstantial support for Appellant’s ability to prosecute his appeal as an

open plea. It was on such basis that the trial court’s initial Certification

expressly noted that the case “is not a plea-bargained case and the defendant

has the right of appeal.” Appellant was admonished with an understanding

that he retained a right to appeal and voluntarily executed his paperwork

with that focused understanding. Indeed, the trial court set an appeal bond

for Appellant’s appeal without any objection from the State of Texas.



                                       9
Appellant had every reasonable expectation that his right to appeal was

protected. Moreover, Appellant remained at large on appeal for several

months prior to having his appeal summarily dismissed due to an improper

dictate imposed on the trial court by the Court of Appeals.


I.    THE COURT OF APPEALS OVERSTEPPED ITS BOUNDARIES
      WHEN IT DICTATED THE CONTENTS OF THE AMENDED
      CERTIFICATION FOR APPELLANT

      A.     It Was Error For the Court Of Appeals To Dictate To The Trial
             Court That This Was A Plea Bargain Case

      In reviewing the Clerk’s Record of Appellant’s case, the Court of

Appeals became concerned whether the appeal had to be dismissed as being

a plea-bargained case that Appellant had entered into. See, e.g., Tex. R.

App. P. 25.2(a)(2) and (d); Chavez v. State, 183 S.W. 3d 675, 680 (Tex.

Crim. App. 2006). Based upon that concern, the Court of Appeals issued an

Abatement Order that initially sought clarification because the trial court’s

judgment and certification did not reflect that Appellant had entered into a

plea bargain.   Indeed, in the trial record the Judgment Of Conviction

expressly referred to an “Open Plea.”      (CR52).    Accordingly, the Trial

Court’s Certification Of Defendant’s Right Of Appeal allowed that this “is

not a plea-bargained case and the defendant has the right of appeal.” (CR

57). Having been perplexed by the underlying record, the Court of Appeals



                                      10
then proceeded to address the issue by permissibly having the trial court to

correct the apparently defective       Certification. See, Tex. R. App. P.

25.2(a)(2) and (d). While Appellant concedes that the Court of Appeals had

the right to order the trial court to correct the initial Certification and

produce an Amended Certification, it was error for the Court of Appeals to

prescribe what the Amended Certification must say. Greenwell v. Court of

Appeals for the Thirteenth Dist., 159 S.W. 3d 645 (Tex. Crim. App. 2005).

When, as here, the Court of Appeals Abatement Order explicitly dictates to

the trial judge what the Certification must state, it overstepped its authority.

Marsh v. State, _____S.W. 3d___(Tex. Crim. App. October 1, 2014, PD-

1034-13); see also, Menjivar v. State, 264 S.W. 3d 137, 142 (Tex. App.

2007); Wilson v. State, 264 S.W. 3d 104, 108 (Tex. App. 2007).

      Apparently, prior to receiving the Abatement Order, the trial judge as

well as all parties involved, including the Appellant, were under the clear

understanding that Appellant had entered an open plea with its contaminant

right to appeal any sentence imposed. However, the Abatement Order left no

choice but for the trial judge to issue an Amended Certification of Appeal

and “[show] that this is a plea-bargained case.” (Supplemental CR6.)




                                      11
Accordingly, as this Court has stated under similar circumstances:

             “[T]he court of appeals here overstepped its authority by
       prescribing exactly what the new certification should say. By
       explicitly setting out that the certification was defective because
       Appellant had "the right to appeal the denial of his motion to
       suppress" and then ordering the court to correct this defect
       within fifteen days, the court of appeals dictated the content of
       the certification, contrary to what is permitted by the rules.
       Citing, Greenwell, 159 S.W.3d at 650 n. 24.


Marsh v. State, _____S.W. 3d___(Tex. Crim. App. October 1, 2014,
PD-1034-13).

       It can easily be presumed that the trial court felt not only compelled to

comply with the Abatement Order directive but to proceed exactly to the

letter as the Abatement Order stated.         Indeed, an examination of the

Amended Certification confirms that the dictate of the Court of Appeals was

followed. “Because this order was closer to a mandamus action than a

request for the trial court to review the record and submit a certification that

comports with it, [this Court should] conclude that the court of appeals

violated the prohibition discussed in Greenwell and erred in its order to the

trial court.” Id.


       B.     The Court of Appeals Abatement Order Mandating That The
              Trial Court Certify A Plea Bargain Case Impermissibly
              Limited the Trial Court To Find Otherwise.
       It is undisputed that substantial evidence is in the record that

evidences Appellant had every intention to make an Open Plea to the

                                       12
criminal charges alleged.    For example, the trial court’s Written Plea

Admonishments expressly stated that this was an “open plea to court.”

(CR42, ¶2). Additionally, in the Judgment Of Conviction By Court-Waiver

Of Jury Trial executed by the trial judge, the terms of the plea clearly

indicates that it was an “Open Plea To Court W/PSI.” (CM52). Moreover,

it is implicit from the conduct of the Court and the parties that Appellant’s

appeal rights would be preserved because he’d entered an open plea. By

way of clear example, Appellant was granted an appeal bond by the Court,

with no objection to the appeal bond by the State. (CM78-79).


      In another context, courts have found rights to appeal particularly

when other documentary evidence in the record tends to show a valid basis

for the appeal. See Johnson v. State, 47 S.W.3d 701, 704 (Tex.App.-Houston

[14th Dist.] 2001, no pet.) (unsigned docket entry “Defendant gave written

notice of appeal as to motion to suppress only” combined with hand-printed

notation “11-16-98 ‘MTN TO SUPPRESS’” on judgment beside preprinted

notation “Notice of Appeal”); Miller v. State, 11 S.W.3d 345, 347 (Tex.

App.-Houston [14th Dist.] 1999; (unsigned docket entry “Appeal only on

Motion to Suppress” combined with judge’s signature on notice of appeal

with handwritten notation “Motion to Suppress Only” and recitation in

judgment that notice of appeal filed on “Motion to Suppress Only”.) Flores


                                     13
v. State, 888 S.W.2d 193, 195-96 (Tex.App.-Houston [1st Dist.] 1994, pet.

ref'd) (signed docket entry under heading “ORDERS OF THE COURT”

which read “D[efendant] plead guilty per order D[efendant] gave notice of

appeal on pre-trial ruling”).


       Under the instant facts below, if not otherwise dictated to by the Court

of Appeals, the trial court may have found that the initial Certification was

not defective at all. Compare, e.g., Dears v. State, 154 S.W. 3d 610 (Tex.

Crim. App. 2005)(discussing a defective certification and open pleas of

guilty in separate cases). In other words, Appellant questions the propriety

of the Court of Appeals’ interpretation from a distance the facts which

occurred at trial and elevating its view of what took place over that of the

trial court.


II.    APPELLANT’S APPEAL RIGHTS WERE UNLAWFULLY
       ABRIDGED BY THE UNDERLYING PROCEDURAL ERROR
       There are numerous rules which may come into play in connection

with the proper certification of a defendant’s right of appeal. The import of

those rules are to set forth a comprehensive scheme to guard against a

defendant, such as Appellant here, being denied the right of appeal because

of a procedural error, administrative mistake or similar act that is beyond the

Appellant’s control. See generally, Cortez v. State, 420 S.W. 3d 803 (Tex.



                                      14
Crim App. 2013). This Court has expressed the view that in the context of

the certification of the defendant's right of appeal, that those Rules “reflect a

strong interest in ensuring that a defendant's right to appeal is not abridged

due to ‘defects or irregularities’ ” that can be corrected. Dears v. State, 154

S.W.3d 610, 614 (Tex. Crim. App. 2005).


      In this instance, Appellant became the victim of a contorted

application of the Rules regarding his right to appeal his sentence. In the

process he became twice victimized by a dictate from the Court of Appeals

to the trial judge which seemingly disregarded all the evidence which may

have been contrary to such dictate. What is left can only be the conclusion

that Appellant’s rights to a legally cognizable appeal have been abridged by

the mandate from the Court of Appeals. Appellant respectfully submits that

those rights owed to him under the facts be protected not only for the

importance in regards to his circumstances, but for all those whose rights are

similarly abridged.


                          PRAYER FOR RELIEF
      For the reasons stated herein and under the authorities presented,

Appellant prays this Honorable Court grant his Petition For Discretionary

Relief, set this matter for oral argument, and reverse the decision of the




                                       15
Court of Appeals dismissing the Appeal and for such other and further relief

as may be available in law and equity.



                               Respectfully Submitted,

                               /s/Cynthia Rowe D’Antonio
                               Cynthia Rowe D’Antonio
                               Oklahoma Bar Number 19652
                               Green Johnson Mumina & D’Antonio
                               400 N. Walker Ave., Suite 100
                               Oklahoma City, Oklahoma 73102
                               Telephone: (405) 488-3800
                               Facsimile: (405) 702-6898
                               EMAIL: cynthia@gjmlawyers.com
                               Admission pro hac vice

                                            -and-

                               Gerald J. Smith, Sr., Texas Bar No.
                               24039316
                               Law Offices of G.J. Smith, Sr. PLLC
                               P.O. Box 200395
                               Arlington, Texas 76006
                               (817) 635-3100
                               (817) 635-3104
                               EMAIL: attorney@gjsmithlaw.com


      ATTORNEYS FOR PETITIONER JIMMY EUGENE JOHNS




                                     16
                   CERTIFICATE OF COMPLIANCE

       Pursuant to Tex. R. App. P. 9.4 (i) (3), the undersigned hereby
certifies that according to the word count function of the computer program
used to generate the document, the portions of the Appellant’s Brief subject
to the rule contain 3265 words total and that the text thereof is in 14-point
Times New Roman font.




                      CERTIFICATE OF SERVICE

       Pursuant to Tex. R. App. P. 9.5(a), the undersigned hereby certifies
that a true and correct copy of the foregoing Appellant’s Petition For
Discretionary Review has been sent to the following through the Court’s E-
Filing system, on this 23rd day of June, 2015:


Charles M. Mallin
Tarrant County District Attorney’s Office
401 West Belknap
Fort Worth, Texas 76196
Counsel of Record for State

Lisa McMinn
P.O. Box 13046
Austin, Texas 78711
State Prosecuting Attorney


                                            /s/ Cynthia Rowe D’Antonio
                                            Cynthia Rowe D’Antonio




                                     17
                                          APPENDIX

                                               Index

Description                                                                                Tab

Memorandum Opinion ........................................................................... A




                                                 18
