                                                                                              ACCEPTED
                                                                                         04-15-00197-CR
                                                                              FOURTH COURT OF APPEALS
                                                                                   SAN ANTONIO, TEXAS
                                                                                    4/15/2015 4:23:59 PM
                                                                                           KEITH HOTTLE
                                                                                                  CLERK

                                No. 04-15-00197-CR

                               IN THE                   FILED IN
                                                 4th COURT OF APPEALS
                  FOURTH COURT OF APPEALS OF TEXASSAN ANTONIO, TEXAS
                       AT SAN ANTONIO, TEXAS     4/15/2015 4:23:59 PM
                                                                    KEITH E. HOTTLE
                         MICHAEL S. EISENHAUER,                          Clerk
                               Appellant

                                         v.

                            THE STATE OF TEXAS,
                                  Appellee

 RESPONSE TO THE ORDER PROPOSING TO DISMISS THIS APPEAL
  PURSUANT RULE 25.2(d) OF THE TEXAS RULES OF APPELLATE
                        PROCEDURE

TO THE HONORABLE COURT OF APPEALS:

        Comes now MICHAEL S. EISENHAUER, Appellant, by and through

undersigned counsel, in reply to the ORDER of this Honorable Court dated April

7, 2015, and shows the Court the following:

   I.     Procedural history:

        Appellant was charged by indictment in cause number 2014-CR-0043 with

felony driving while intoxicated, enhanced with the allegation that Appellant was

twice previously convicted of driving while intoxicated. The primary offense was

alleged to have been committed in Bexar County, Texas, on or about November 9,

2013. (CR at 7). On November 18, 2013, attorney Brad Kvitna filed a written

appearance as Appellant’s retained attorney of record. (CR at 4).
          On February 18, 2014, pursuant to a written plea agreement with the State,

Appellant pleaded no contest to the charged offense. (CR at 10-11, 13). The parties

agreed that the punishment assessed would be capped at six years of imprisonment,

with a $1,500 fine. (CR at 13). As part of the plea agreement, Appellant agreed in

writing to waive the right of appeal. (CR at 13). The trial court approved

Appellant’s waiver and voluntary relinquishment of his known rights in this case,

including the right of appeal. (CR at 17).

          On April 4, 2014, the trial court, the Honorable Maria Teresa Herr presiding,

followed the terms of the plea agreement and sentenced Appellant to six years of

imprisonment in the Institutional Division, with a $1,500.00 fine. (CR at 84). The

trial court imposed court costs of $504.00. (CR at 84). The trial court certified that

this is a plea-bargain case, that Appellant has “NO right of appeal,” and that he

also waived the right of appeal. (CR at 86). By his signature, Appellant

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

at 86).

          Almost a year after he was sentenced, on March 24, 2015, Appellant filed a

pro se notice of appeal with the District Clerk. (CR at 97-101). Appellant’s pro se

notice of appeal was not timely filed, and nothing in the trial record shows that he

filed a motion for extension of time to file the notice of appeal. (CR at 2-3).




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         On April 1, 2015, the trial court appointed the Bexar County Public

Defender’s Office to represent Appellant in this attempted appeal. (CR at 209).

The clerk’s record was filed on April 6, 2015. On April 7, 2015, this Court

ORDERED that this appeal will be dismissed pursuant to Rule 25.2(d) of the

Texas Rules of Appellate Procedure unless Appellant files a response establishing

that the notice of appeal was timely filed and causes an amended trial court

certification (showing that Appellant has the right of appeal) to be filed by April

17, 2015. This is court-appointed counsel’s response to the Court’s ORDER.

   II.      No right of appeal:

         In a plea-bargain case where the sentence does not exceed the agreed-upon

punishment, the defendant may appeal only matters that were raised by written

motion and ruled upon before trial, or by getting the trial court’s written

certification that he has permission to appeal. See TEX. R. APP. P. 25.2(a)(2). Rule

25.2(d) of the Texas Rules of Appellate Procedure provides, “The appeal must be

dismissed if a certification that shows the defendant has a right of appeal has not

been made part of the record under these rules.” TEX. R. APP. P. 25.2(d).

         This was a plea-bargain case. As noted above, the clerk’s record shows that

Appellant pleaded “nolo contendere” to the primary offense pursuant to the terms

of a written plea agreement with the State. (CR at 10-11, 13). The trial court

followed that plea agreement by sentencing Appellant to six years of


                                           3
imprisonment. (CR at 13, 84). The trial court accurately certified that this is a plea-

bargain case, Appellant has “NO right of appeal,” and also waived the right of

appeal. (CR at 86). Appellant signed that notice. (CR at 86). Additionally, no

written pretrial motions were filed and ruled upon before the plea-entry hearing.

(CR at 2-3). For these reasons, the trial court’s certification of the defendant’s right

of appeal accurately reflects that this is a plea-bargain case, the terms of the plea

bargain were followed, and Appellant has no right of appeal.

   III.      Waiver:

          A defendant may waive the right of appeal, as long as the waiver is made

“voluntarily, knowingly, and intelligently.” See TEX. CODE CRIM. PROC. art. 1.14

(“The defendant in a criminal prosecution for any offense may waive any rights

secured him by law.”); Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App.

2009). The record shows that Appellant waived the right of appeal in writing as

part of the plea agreement, and the trial court approved that waiver. (CR at 13, 17).

Undersigned counsel can identify nothing in the clerk’s record to show that the

trial court failed to follow the terms of the plea bargain, and nothing shows that

Appellant’s written waiver of the right of appeal was involuntary. Since Appellant

has validly waived the right of appeal, this Court has not acquired jurisdiction over

this case. Marsh v. State, 444 S.W.3d 654, 660 (Tex. Crim. App. 2014)(“…because

Appellant had validly waived his right to appeal, the court of appeals never


                                            4
acquired jurisdiction.”). If Appellant now wishes to argue that his plea was

involuntary, for example, he will have to raise that argument in a post-conviction

writ. He cannot make that argument in this attempted appeal. See TEX.R.APP.P.

25.2(a)(2).

   IV.     No jurisdiction:

        Appellant’s notice of appeal was due to be filed within thirty days after the

sentence was imposed in open court. TEX. R. APP. P. 26.2(a)(1). So it was due to be

filed by May 5, 2014. Appellant could have filed a motion for extension of time to

file the notice of appeal. TEX. R. APP. P. 26.3. His notice of appeal would have then

been due on May 19, 2014. But he did not file a motion for extension of time to

file his pro se notice of appeal, and did not file his pro se notice of appeal until

March 24, 2015. (CR at 156). It was not timely filed. For that reason alone, this

jurisdiction of this Court was not invoked. See Olivo v. State, 918 S.W.2d 519, 522

(Tex. Crim. App. 1996) (holding that a timely filed notice of appeal is necessary to

invoke the jurisdiction of a court of appeals).

   V.      No amended trial court certification will be sought by counsel:

        The undersigned attorney has reviewed the clerk’s record of this case and

can find no right of appeal for Appellant. No pretrial motions were filed and ruled

upon by the trial court before Appellant entered his negotiated plea. Nothing in the

record suggests that the trial court gave Appellant permission to appeal. In fact, as


                                            5
noted above, Appellant explicitly waived the right of appeal in writing as part of

the plea agreement. (CR at 13). In short, undersigned counsel can find no reason to

seek an amended certification from the trial court that would give Appellant the

right of appeal. Moreover, Appellant’s pro se notice of appeal was not timely filed.

Therefore, the undersigned cannot prevent this Court from dismissing this

attempted appeal. Undersigned counsel also cannot raise legal claims—such as an

argument that plea counsel rendered ineffective assistance —on Appellant’s behalf

in this attempted direct appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex.

Crim. App. 2006)(where defendant has no right to appeal after his plea bargain,

dismissal of the appeal is required, with no inquiry by the appellate court into even

possibly meritorious claims).

   VI.    Relief available to Appellant:

      Although the Court of Appeals will dismiss this this appeal, Appellant may

still challenge his conviction after the mandate issues by filing an application for a

writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal

Procedure. Appellant may also seek relief by filing an original petition for a writ of

certiorari with the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN.

art. 4.04 (West 2005), and TEX. CONST. art. V, § 5. However, undersigned counsel

is appointed to represent Appellant on this attempted direct appeal only. He will

not represent or assist Appellant with any post-conviction or original-proceeding


                                           6
challenges to his conviction and sentence in this cause. Appellant will have to

pursue those remedies pro se, or with retained counsel.

      WHEREFORE, Appellant, by and through undersigned counsel, is

compelled to concede that Appellant has no right of appeal from the underlying

criminal case and must also concede that the Honorable Court of Appeals may

dismiss this appeal for that reason.

                                       Respectfully submitted,

                                       /s/ Richard B. Dulany, Jr.
                                       _________________________________
                                       RICHARD B. DULANY, JR.
                                       Texas Bar No. 06196400
                                       Assistant Public Defender
                                       Bexar County Public Defender’s Office
                                       101 W. Nueva St., Suite 310
                                       San Antonio, Texas 78205
                                       (210) 335-0701
                                       FAX (210) 335-0707
                                       richard.dulany@bexar.org

                                       ATTORNEY FOR APPELLANT



             CERTIFICATE OF SERVICE AND COMPLIANCE

      I HEREBY CERTIFY that a true and correct copy of the above and

foregoing response has been delivered electronically to the Bexar County District

Attorney’s Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St.,




                                         7
Suite 710, San Antonio, Texas 78205, on April 15, 2015. The total word count is

1,600, not including the appendix.

                                     /s/ Richard B. Dulany, Jr.
                                     _________________________________
                                     RICHARD B. DULANY, JR.




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Appendix: Trial Court’s Certification of Defendant’s Right of Appeal




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