                                                                                                      ACCEPTED
                                                                                                  04-16-00303-CR
                                                                                      FOURTH COURT OF APPEALS
                                                                                           SAN ANTONIO, TEXAS
                                                                                              6/1/2016 6:27:12 PM
                                                                                                   KEITH HOTTLE
                                                                                                           CLERK

                               Cause No. 04-16-00303-CR
STATE OF TEXAS                                §                   COURT OF  APPEALS
                                                                         FILED IN
                                                                     4th COURT OF APPEALS
                                              §                       SAN ANTONIO, TEXAS
                                                                     06/01/16 6:27:12 PM
VS.                                           §      FOURTH       JUDICIAL    DISTRICT
                                                                       KEITH E.  HOTTLE
                                                                             Clerk
                                              §
MOISES TRUJILLO                               §                 SAN ANTONIO, TEXAS


          APPELLANT’S RESPONSE TO THE ORDER PROPOSING
             TO DISMISS FOR WANT OF RIGHT OF APPEAL

TO THE HONORABLE COURT OF APPEALS:

         COMES NOW, appellant, MOISES TRUJILLO, who, by and through the

undersigned counsel, and in reply to the order of this Honorable court of appeals

dated May 23, 2016, would show the Court the following:

    I.     Procedural history.

         The State charged appellant by indictment on June 4, 2014 with: one [1]

count of indecency by exposure with a child younger than seventeen (17) years old

[Count III]; and two [2] counts of aggravated sexual assault of a child younger than

fourteen (14) years old [Counts I & II], each alleged to have occurred in Bexar

County, Texas, on or about March 30, 2007 or May 28, 2008. See (1 CR 5)

(containing State’s “True Bill of Indictment” in Cause No. 2014-CR-4416).1


1
  Indecency by exposure with a child younger than seventeen (17) is a third degree felony. TEX.
PENAL CODE §§ 21.11 (a)(2),(d) (West 2008). Penetrating or contacting the sexual organ of a
child younger than fourteen (14) is a first degree felony. TEX. PENAL CODE §
22.021(a)(1)(B)(iii),(e) (West 2007).
      The parties entered into a written plea agreement under which appellant

applied for deferred adjudication or community supervision on March 14, 2016. (1

CR 21, 29). Pursuant to that agreement, appellant pled “guilty” to Counts I & III

of the indictment and the State dismissed Count II. See, e.g., (1 CR 25, 29)

(containing plea documents entitled: “Court’s Admonishment and Defendant’s

Waivers and Affidavit of Admonitions,” “Plea Bargain,” and “Waiver, Consent to

Stipulation of Testimony, and Stipulations”). The written agreement shows the

State would also recommend: (1) “punishment to be assessed at [a] CAP of 25

years [in TDCJ];” (2) a fifteen-hundred dollar [$1,500] fine; (3) “[an] affirmative

finding of…[a] 3G offense [that will render] Defendant not eligible for supervision

under CCP 42.12, Sec. 3;” and (4) “[the] State will make no recommendation [on]

Defendant’s deferred adjudication/community supervision application.” (1 CR 29)

(emphasis added).

      In addition, a section of the plea bargain page nominated “Waiver of

Appeal” states, in relevant part, “as part of my plea bargain agreement in this case,

I knowingly and voluntarily waive my right to appeal…in exchange for the

prosecutor’s recommendation, provided that the punishment assessed by the court

does not exceed our agreement.” (1 CR 29). The plea agreement bears the

signatures of: (1) appellant; (2) his counsel, Robert F. Gebbia; and (3) Assistant

District Attorney, Marissa L. Giovenco. (1 CR 29, 68).
         The presiding Judge, the Hon. Kevin O’Connell, followed appellant’s plea

agreement on April 26, 2016, sentencing appellant to twenty-five [25] years in the

Texas Department of Criminal Justice Institutional Division, and a fifteen-hundred

dollar ($1,500) fine. See (1 CR 68-75) (containing “Judgment(s) of Conviction by

Court—Waiver of Jury Trial”). That same day, the trial court also certified that

“this criminal case is a plea-bargain case, and appellant has NO right of appeal.” (1

CR 67) (containing “Trial Court’s Certification of Defendant’s Right of Appeal”).

         On May 13, 2016, three [3] distinct events occurred: (1) appellant filed

notice of appeal, [1 CR 76]; (2) Robert F. Gebbia successfully moved to withdraw

as counsel of record, [1 CR 78]; and (3) the trial court appointed the Bexar County

Public Defender’s office to represent appellant for purposes of this attempted

appeal. (1 CR 83). Later, on May 18, 2016, the released Gebbia filed a “Motion

For Reconsideration or Reduction of Sentence” in which he states, “Moises

Trujillo would like to request that the sentence be reduced to five (5) years or

probation be reconsidered.” (1 CR 84) (emphasis added). The trial court

summarily denied Gebbia’s motion on May 19, 2016.

   II.      No right of appeal.

         Appellant pleaded guilty or nolo contendere to two [2] of the three [3] the

counts alleged against him pursuant to a written plea agreement with the State. (1

CR 26). As part of the plea agreement, appellant waived his right of appeal in
writing. (1 CR 29). The trial court certified that: “this criminal case a plea-bargain

case, and the defendant has NO right of appeal.” (1 CR 67).

      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) (West 2015). The undersigned attorney has reviewed documents including

the electronic clerk’s record in this case and can find no right of appeal for

appellant. See TEX. R. APP. P. 25.2(a)(2) (providing that, in plea-bargained case

where the sentence did not exceed the agreed-upon punishment, defendant may

only appeal: [1] matters raised by written motion and ruled upon before trial; or [2]

after getting the trial court’s permission).

      Notably, in an effort to secure the permission necessary to pursue this

appeal, appellate counsel did file and present Judge O’Connell with a “Motion to

Amend Trial Court’s Certification of Defendant’s Right to Appeal.” See Exhibit

A. Judge O’Connell denied that motion on May 24, 2016. See Exhibit B.

      Accordingly, because the record contains no evidence of any legal rulings

secured pretrial, and the trial court has steadfastly denied permission to appeal, this

Court has little choice but to dismiss the appeal. See, e.g., Chavez v. State, 183

S.W.3d 675, 680 (Tex. Crim. App. 2006) (dismissing appeal with no inquiry into

even possibly meritorious claims when defendant had no right to appeal due to plea
bargain); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (holding

valid waiver of appeal will prevent a defendant from appealing without the consent

of the trial court); Buck v. State, 45 S.W.3d 275, 277-78 (Tex. App.—Houston [1st

Dist.] 2001, no pet.) (ruling waiver of appeal made contemporaneously with plea

and before sentencing is binding).

   III.      Relief Available to Appellant.

          Although the court of appeals is required to dismiss this appeal, appellant

may, after the mandate is issued in this case, file an application for a writ of habeas

corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure to

determine whether his retained attorney provided ineffective assistance of counsel.

Trial counsel’s performance from March 14, 2016 through May 18, 2016 arguably

indicates an objectively deficient belief that appellant was eligible for community

supervision from the trial court. See, e.g., (1 CR 21) (containing “Application for

Deferred Adjudication or Community Supervision (Non Jury),” file stamped same

day as appellant’s plea, March 14, 2016); (1 CR 84) (containing trial counsel

“Motion For Reconsideration or Reduction of Sentence,” stating, “Moises Trujillo

would like to request that the sentence be reduced to five (5) years or probation be

reconsidered”) (emphasis added). Appellant no doubt relied on trial counsel’s

representations when he applied for “probation,” which could only be granted by a

jury in this case, not the judge. See, e.g., State v. Dunbar, 297 S.W.3d 777 (Tex.
Crim. App. 2009) (noting if defendant is found guilty of “3g” offense, probation

may be granted only by jury, not judge); TEX. CRIM. P. CODE, art. 42.12, § 3g

(West 2015).

       WHEREFORE, appellant, by and through undersigned counsel, is

compelled to concede that this Honorable court of appeals must dismiss this direct

appeal for the reasons stated above.

                                       Respectfully submitted,
                                       MICHAEL YOUNG
                                       Chief Public Defender

                          BY:          /s/ Dean A. Diachin
                                       Dean A. Diachin
                                       BEXAR COUNTY ASST. PUBLIC DEFENDER
                                       Paul Elizondo Tower
                                       101 W. Nueva St., Suite 370
                                       San Antonio, Texas 78204
                                       Phone:       (210) 335-0701
                                       Fax:         (210) 335-0707
                                       Dean.Diachin@bexar.org
                                       T.B.N.:      00796464

                                       ATTORNEY FOR APPELLANT.
                       CERTIFICATE OF SERVICE


      I do hereby certify that the above and foregoing has been delivered to the

Bexar County District Attorney’s Office, San Antonio, Texas 78205 on this    1st

day of June 2016.

                                    /s/ Dean A. Diachin
                                    DEAN A. DIACHIN
                                    Assistant Public Defender
  Appendix A
Defendant’s Motion to Amend Trial
Court’s Certification of Defendant’s
         Right ot Appeal

    Cause No.: 2014-CR-4416;
         Filed: 05-24-16.
