                                                                               ACCEPTED
                                                                               04-14-00879
                                                               FOURTH COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                                                                      5/28/2015 9:28:24 AM
                                                                            KEITH HOTTLE
                                                                                    CLERK

                  No. 04-14-00878-CR
                  No. 04-14-00879-CR
                                                          FILED IN
                                                   4th COURT OF APPEALS
                            In the                  SAN ANTONIO, TEXAS
                    Court of Appeals               5/28/2015 9:28:24 AM
                            for the                  KEITH E. HOTTLE
                                                           Clerk
                 Fourth District of Texas
                       at San Antonio

                  

                  No. 2013CR10841W
                  No. 2013CR10842W
                  In the 437th District Court
                     Bexar County, Texas

                  

             MATTHEW DOUGLAS HAYES
                           Appellant
                             V.
                THE STATE OF TEXAS
                      Appellee
                  

APPELLANT’S REPLY TO THE 4TH COURT OF APPEALS’ ORDER
                ISSUED ON MAY 22, 2015

                  


                           MANDY MILLER
                           Attorney for Matthew Douglas Hayes
                           State Bar No: 24055561
                           2910 Commercial Ctr. Blvd., Ste. 103-201
                           Katy, TX 77494
                           (832) 900-9884
                           Fax: (877) 904-6846
                           mandy@mandymillerlegal.com
TO THE HONORABLE COURT OF APPEALS:

        Appellant was charged with four counts of aggravated robbery, all arising out

of one criminal transaction. (RR I1 5, 6). On December 4, 2013, appellant pled guilty

to two charges of aggravated robbery and submitted to a pre-sentence investigation

(PSI). (RR I 5, 6, 8). An agreement was reached wherein appellant’s sentence would

not exceed ten years confinement. (CR I 10; CR II2 10; RR I 6). A hearing was held

on January 28, 2014. (RR II). On September 9, 2014, appellant was sentenced to

seven years confinement in the Institutional Division of the Texas Department of

Criminal Justice. (RR III 8).

        After being ordered to supplement the record, the trial court certified that

appellant’s plea was the result of an agreement with the state and that appellant had

no right to appeal his convictions. This Court then issued an order directing appellant

to show cause why his appeals should not be dismissed.

        A defendant may waive his right to appeal, but 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




1 There are three reporter’s records. The record from the plea proceeding will be referred to as RR I. The
record from the pre-sentence investigation hearing will be referred to as RR II. Finally, the record from the
sentencing hearing will be referred to as RR III. The records in both cause numbers are identical. Therefore,
reference to one reporter’s record is sufficient.
2 There is one clerk’s record in each cause number. They are, at this time, not identical. CR I refers to the

clerk’s record in cause number 2013CR10841W. CR II refers to the clerk’s record in cause number
2013CR10842W.


                                                     2
know the nature of the claims he could have brought on appeal but for his waiver.

Ex parte Reedy, 282 S.W.3d 492, 496-97 (Tex. Crim. App. 2009).

      After appellant was sentenced, he filed timely motions for new trial alleging

that, under Texas Penal Code article 1.15, the evidence did not support a finding that

appellant used or exhibited a deadly weapon during the course of the robbery. (CR I

66-130; CR II 45-109). The motions were overruled by operation of law. (CR I 83;

CR II 62). Appellant appealed the denial of the motions for new trial in briefs filed

with this Court on March 20, 2015.         Appellant’s appeals raise the same issues

addressed in the motions for new trial.

      Appellant raises a specific legal argument that there was no evidence that he, or

his co-defendants, used or exhibited a deadly weapon during the course of the

robbery. This claim is corroborated by the fact that both of appellant’s co-defendants

were allowed to plea to the reduced charge of robbery. There is nothing in the record

to suggest that either of the men were any less culpable that appellant.

      Appellant’s claims raise a fairly complex and fact-specific legal issue that

appellant could not have anticipated at the time he pled to the offense and

purportedly waived his right of appeal. This is especially true if appellant received

deficient or incorrect counsel during the time of his plea. Thus, even if appellant

waived his right of appeal, such waiver was not knowingly or intelligently waived.

      Furthermore, the Court of Criminal Appeals has recognized that a defendant’s

waiver of appeal does not waive the right to file a motion for new trial. See Lundgren v.

                                           3
State, 434 S.W.3d 594, 600 (Tex. Crim. App. 2014) (“[W]e hold that motions for new

trial and appeals are sufficiently different that an appellate waiver will not waive a

defendant’s right to file a motion for new trial.”). The sufficiency of evidence to

support a judgment of conviction based on a guilty plea in a felony case may be

challenged on appeal under article 1.15. Ex parte Williams, 703 S.W.2d 674, 678 (Tex.

Crim. App. 1986). However, such a challenge cannot be raised by collateral attack

through habeas corpus. Id. And it has been frequently held that the writ of habeas

corpus cannot be used as substitute for or to usurp the function of an appeal. Ex

parte Powell, 558 S.W.2d 480 (Tex. Cr. App. 1977); Ex parte McGowen, 645 S.W.2d 286

(Tex. Cr. App. 1983).

      Since appellant raises questions regarding the sufficiency of the evidence, he

has no other remedy at law other than motions for new trial and appellate review of

the denial of the motions. To deny him this right is not only contradictory to

established case law, but denies him due process and due course of law under the

United States and Texas constitutions.

                                         /S/MANDY MILLER

                                         MANDY MILLER
                                         Attorney for Matthew Douglas Hayes
                                         2910 Commercial Center Blvd., Ste. 103-201
                                         Katy, TX 77494
                                         SBN 24055561
                                         (832) 900-9884
                                         FAX (877) 904-6846
                                         mandy@mandymillerlegal.com


                                           4
                          CERTIFICATE OF SERVICE

      Appellant has served a copy of the foregoing instrument to counsel for the

State of Texas at the following address:

Amanda Byrd
Amanda.Byrd@bexar.org
Bexar County District Attorney’s Office


                                           /s/MANDY MILLER
                                           MANDY MILLER
                                           Attorney for Matthew Douglas Hayes
                                           2910 Commercial Center Blvd., Ste. 103-201
                                           Katy, TX 77494
                                           SBN 24055561
                                           (832) 900-9884
                                           FAX (877) 904-6846
                                           mandy@mandymillerlegal.com

Date: May 27, 2015




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