No. 04 -15- 00 3 84
- CR
IN THE FOURTH COURT OF APPEALS OF TEXAS AT SAN ANTONIO, TEXAS
RAYMOND ZAPATA , 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 RAYMOND ZAPATA , Appellant, by and through undersigned counsel, in re ply to the ORDER of this Honorable Court dated July 16 , 2015 , and
shows the Court the f ollowing:
I. Procedural history: Zapata was charged by indictment in cause number 201 4CR 6345 with one

count a ggravated robbery . (CR at 4)

. This offense was alleged to have been committed in Bexar County, Texas, on or about April 27 , 201 4

. Zapata was represented by attorney Vincent D. Callahan

. On J une 12 , 2015 , p ursuant to a written plea agreement with the State,
Z apata pleaded g uilty to the offense alleged in the indictment

. The parties agreed ACCEPTED 04-15-00384-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/20/2015 1:30:10 PM KEITH HOTTLE CLERK2 in writing that the punishment would be as sessed at 5 0 years of imprisonment with a $2,000 fine

. (CR at 3 4 ). The sentence would run concurrent with the aggravated

ro bbery case in cause number 2014CR6346. (CR at 34). As part of the plea agreement, Z apata agreed in writing to voluntarily waive the right of appeal. (CR
at 3 4 )

. By h i s signature, t he trial court approved Z apata ’ s waiver and voluntary relinquishment of his known rights, including his waiver of the right of appeal. (CR at 3 8 ).
On J une 12 , 201 5 , the trial court, the Honorable S teven C. Hilbig presiding, followed the terms of the plea agreement and sentenced Z apata to 5 0 years of imprisonment in the Institutional Division with a $2,000 fine

. (CR at 6 0

- 1 ). The

sentence w as ordered to be served concurrently with the sentence imposed in cause
number 201 4 CR 6 346 . (CR at 6 0 ). The trial court accurately certified that this is a plea

- bargain case and that Z apata has “NO right of appeal

. ” (CR at 6 2 ). By his signature on the certification , Z apata ackno wledged that he was informed that he
has no ri ght of appeal

. Despite having waived the right of appeal as part of his plea agreement,
Z apata timely filed a pro se notice of appeal with the District Clerk on J une 25 , 2015

. (CR at 6 5

- 6 ). On J une 25 , 2015 , the trial court appointed the Bexar County
Public Defender ’s O ffice to represent Z apata in his attempted appeal. ( CR at 6 8 ).
The clerk’s record was filed on J uly 9 , 2015

. On J uly 16 , 2015 , this Court gave3 written notice that the appeal will be dismissed pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended certification showing that
Z apata has the right to appeal is made part of the appellate record by A ugust 14 , 2015 . This is court

- appointed counsel ’s response to the Court’s ORDER

. II. No r ight 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
certificatio n that he has permission to appeal. See T EX

. R. A PP

. 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.” T EX

. R. A PP

. P. 25.2(d). This was a plea

- bargain case. As noted above, the clerk’s record shows that
Z apata entered a g uilty plea to the charged offense pursuant to the terms of a written plea agreement with the State

. The trial court followed that plea agreement by sentencing Z apata to 5 0 years of imprisonment with the sentence to run concurrently with cause number 201 4 CR 6 346

. The trial court accurately certified
th at this is a plea

- bargain case and that Z apata has “NO right of appeal” because the plea agreement was followed

. Z apata , by his signature, acknowledged that he was informed that he has no right of appeal. Further, he voluntarily waived the4 right of appeal in writing when he signed the written pl ea agreement. (CR at 34). For these reasons, the trial court’s certification of the defendant’s right of appeal accurately reflects that this is a plea

- bargain case , that the terms of the plea bargain were followed, and that Z apata has no right of appeal.
III. Waiver:
A de fendant may waive th e right of appeal , as long as the waiver is made “voluntarily, knowingly, and intelligently.” See T EX

. C ODE C RIM

. P ROC . 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). T he clerk ’ s record shows that Z apata voluntarily waived the right of appeal in writing as part of the plea agreement and the trial court approved that waiver

. Undersigned counsel can identify nothing in t he clerk’s record to show that the trial court failed to follow the terms of the plea bargain , or that Z apata ’ s written waiver of the right of appeal was involuntary.
Since Z apata has validly and voluntarily waived the right of appeal and accepted the benefit of his plea bargain , this Court has not acquired jurisdiction

over the attempted appeal in th i s case
. Marsh v. State , 444 S.W.3d 654, 660 (Tex. Crim. App. 2014)( “... because Appellant had validly waived his right to appeal, the

co urt of appeals never acquired jurisdiction. ”). If Z apata now wishes to argue that he received ineffective assistance from his plea counsel or that his g uilty plea was5 involuntary , he will have to raise those argument s in a post

- conviction writ. He

cann ot make those argument s in this attempted appeal. See T EX .R.A PP .P. 25.2(a)(2).
IV. No amended trial court certification will be sought by counsel:
For all of the reasons stated ab ove, t he undersigned attorney can find no right of appeal for Z apata

. Nothing in the record suggests that the trial court
i ntended to give Z apata permission to appeal or that any appealable pretrial
motions were filed and ruled on

. In fact, as noted above, Z apata expl icitly waived
the right of appeal in writing as part of the plea agreement . T h e waiver is enforceable against him

. For that reason alone, the trial court’s certification that he has no right of appeal is accurate. Marsh , 444 S.W.3d at 660. In short, undersigned counsel can find no reason to seek an amended certification from the trial court that would give Z apata the right of appeal. The certification is accurate in that it comports with the proceedings in the trial court. Therefore, the und ersigned cannot prevent this Court from dismissing th is attempted appeal

. Undersigned counsel also cannot raise legal claims

— such as an argument that plea counsel rendered ineffective assistance

— in th is attempted direct appeal

. See Chavez v. State , 183 S.W.3d 675, 680 (Tex. Crim. App. 2006)(where the defendant has no right to appeal after his plea bargain, dismissal6 of the appeal is required, with no inquiry by the appellate court into even possibly meritorious claims).
V. Relief available: Although the Court of Appeals will dismiss this this appeal , Z apata may still challenge h is 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. He may also seek relief by filing an original petition for a writ of certiorari with the Court of Criminal Appeals. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 4.04 (West 2005), and T EX

. C ONST . art. V, § 5. However, u ndersigned counsel is appointed to represent Z apata on direct appeal only . He will not represent or
assist Z apata with any post

- conviction or original

- proceeding challenges to h is
conviction and sentence

. Z apata will have to pursue those remedies on his own , or with retained counsel , if he so chooses

. WHEREFORE, undersigned counsel, is compelled to concede that Z apata has no right of appeal fro m the underlying criminal case and must also concede
that the Honorable Court of Appeals may dismiss this appeal for that reason

. No amended certification of the defendant’s right of appeal will be sought. Respectfully submitted, /s/ Richard B. Dulany, Jr.

____________________________ _____ RICHARD B. DULANY, JR. Texas Bar No. 061964007 Assistant P ublic Defender Bexar County Public Defender ’s Office 101 W. Nueva St., Suite 310 San Antonio, Texas 7820 5 (210) 335

- 0701 FAX (210) 335

- 0707 richard.dulany@bexar.org
ATTORNEY FOR APPELLANT

C ERTIFICATE 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 B exar C ounty District Attorney’s Office , Appellate Division , Paul E lizondo Tower, 101 W. Nueva St.,
Suite 71 0 , San Antonio, Texas 7820 5, on July 2 0 , 2015

. The total word count is 1, 4 58 , not including the appendix

. /s/ Richard B. Dulany, Jr.

_________________________________ RICHARD B. DULANY, JR.8 Appendix: Trial Court’s Certificatio n of Defendant’s Right of Appeal in cause numbers 201 4 CR 6 34562