                                                                                                 ACCEPTED
                                                                                             04-15-00380-CR
                                                                                 FOURTH COURT OF APPEALS
                                                                                      SAN ANTONIO, TEXAS
                                                                                         7/8/2015 1:22:30 PM
                                                                                              KEITH HOTTLE
                                                                                                      CLERK

                                  NO. 04-15-00380-CR

                       IN THE COURT OF APPEALS            FILED IN
                                                   4th COURT OF APPEALS
               FOURTH COURT OF APPEALS DISTRICT OF TEXAS
                                                    SAN ANTONIO, TEXAS
                        AT SAN ANTONIO, TEXAS      7/8/2015 1:22:30 PM
                                                                      KEITH E. HOTTLE
                         JOSHUA ALLEN SCHOPPMAN,                           Clerk
                                  Appellant

                                           v.

                              THE STATE OF TEXAS,
                                    Appellee

    APPELLANT’S RESPONSE TO THE ORDER PROPOSING TO DISMISS
             THIS APPEAL FOR NO RIGHT OF APPEAL

TO THE HONORABLE COURT OF APPEALS:

          Comes now JOSHUA ALLEN SCHOPPMAN, Appellant, by and through

undersigned counsel, in reply to the order of this Honorable Court dated July 1,

2015, shows the Court the following:

     I.     Procedural history:

          Appellant was charged by indictment in cause number 2015-CR-0691 with

possession of a controlled substance, Penalty Group 1, 4 – 200 grams, alleged to

have been committed in Bexar County, Texas, on or about March 11, 2014. (CR,

4). 1




1
  A felony of the second degree, in violation of TEX. HEALTH & SAFETY CODE §§ 481.115(a) &
(d).
      On May 11, 2015, pursuant to a written plea agreement with the State,

Appellant pleaded nolo contendere to the charged offense. (CR, 28-32). As part of

the plea agreement, Appellant waived the right of appeal in writing. (CR, 32).

      The plea agreement provided that: (1) punishment be assessed at 10 years;

(2) there was a fine of $1,500; (3) the State recommended community supervision;

(4) this case run concurrent with two other cases; and (5) Mr. Schoppman take part

in the Substance Abuse Felony Punishment program (SAFP). The plea agreement

stated: “It is further agreed by the parties that in the event the Court assessed terms,

condition, and or a length of supervision of community supervision or deferred

adjudication different from those agreed to by the parties, that such difference shall

not constitute grounds for setting aside the Defendant’s plea in this cause.” The

plea agreement also contains the following note:

      The parties are not allowed to make binding agreements regarding the
      length of community supervision or the conditions of community
      supervision, which are totally dependent upon the Court’s discretion.

      This note was followed by a recommendation of community supervision for

a period of six years, which was explicitly declared to be non-binding. Mr.

Schoppman signed the plea agreement and the waiver of appeal. (CR, 32).

      On June 3, 2015, the trial court, the Honorable Mary Roman presiding,

followed the terms of the plea agreement and sentenced Appellant to a term of 10

years of confinement in the Texas Department of Criminal Justice – Institutional


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Division, suspended for a period of 10 years, with a fine of $1,500. (CR, 56-57).

The trial court certified that this is a plea-bargain case, and Appellant has “NO

right of appeal.” (CR, 48). By his signature, Appellant acknowledged that he was

informed that he has no right of appeal in this case. (CR, 48).

          Appellant filed a pro se notice of appeal from a negotiated plea, on June 15,

2015. (CR, 58-59). On June 18, 2015, the trial court appointed the Bexar County

Public Defender to represent Appellant in this attempted appeal. (CR, 67).

    II.      No right of appeal:

          Appellant has no right of appeal. As noted above, Appellant pleaded nolo

contendere to the charged offense pursuant to a written plea agreement with the

State. (CR, 28-32). The trial court followed the plea agreement. As part of the plea

agreement, Appellant waived the right of appeal in writing. 2 (CR, 32). The trial

court certified that this is a plea-bargain case, and Appellant has “NO right of

appeal.” (CR, 48). Appellant signed that notice. (CR, 48).

          Regarding the recommendation of a six-year probation term, the plea

agreement clearly stated that that this was not a binding recommendation and that

the trial court could impose a term of community supervision that was longer than

that agreed upon (limited only by the 10-year underlying sentence). (CR, 32). The

trial court is empowered by law to determine conditions of community supervision.

2
  A defendant may waive his right to appeal, if the waiver is made voluntary, knowingly, and
intelligently. Marsh v. State, 44 S.W.3d 654, 660 (Tex. Crim. App. 2014).
                                             3
TEX. CODE CRIM. PROC. art. 42.12, § 10(a); see Fielder v. State, 834 S.W.2d 609,

511 (Tex. App. – Fort Worth 1992, pet. ref’d). Therefore, Mr. Schoppman’s

statement in his motion for new trial that the punishment did exceed the plea

agreement (CR, 63) is untenable.

      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). The undersigned attorney has reviewed documents including the electronic

clerk’s record of this case and can find no right of appeal for Appellant. See TEX.

R. APP. P. 25.2(a)(2) (in a plea-bargain case where the sentence did not exceed the

agreed-upon punishment, the defendant may appeal only: matters raised by written

motion and ruled upon before trial; or after getting the trial court’s permission to

appeal). Therefore, this Court has no choice but to dismiss the 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); Monreal v.

State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003)(a valid waiver of appeal will

prevent a defendant from appealing without the consent of the trial court).




                                         4
   III.     Relief available to Appellant:

          Although the Court of Appeals is required to dismiss this this appeal,

Appellant may file an application for a writ of habeas corpus pursuant to article

11.072 of the Texas Code of Criminal Procedure, after the mandate is issued. It

should be noted that if Mr. Schoppman is granted habeas relief, his plea bargain

would no longer be applicable, and he would face the full 2 – 20 year range of

punishment, with no guarantee of community supervision.

          WHEREFORE, Appellant, by and through undersigned counsel, is

compelled to concede that the Honorable Court of Appeals and must dismiss this

appeal for the reasons stated above.

                                         Respectfully submitted,


                                         /s/ Michael D. Robbins
                                         MICHAEL D. ROBBINS
                                         Assistant Public Defender
                                         Paul Elizondo Tower
                                         101 W. Nueva St., Suite 370
                                         San Antonio, Texas 78205
                                         Bar No. 16984600
                                         (210) 335-0701
                                         FAX (210) 335-0707
                                         mrobbins@bexar.org

                                         ATTORNEY FOR APPELLANT




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                       CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the above and
foregoing response has been emailed to the Bexar County District Attorney’s
Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 710,
San Antonio, Texas 78205, on July 8, 2015.

                                   /s/ Michael D. Robbins
                                   MICHAEL D. ROBBINS
                                   Assistant Public Defender




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