NO . 04 -15- 00592
- CR
IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT OF TEXAS AT SAN ANTONIO, TEXAS
DAVID DEVIN TREVINO , Appellant

v. THE STATE OF TEXAS , Appellee
APPELLANT’S RESPONSE TO THE ORDER PROPOSING TO DISMISS THIS APPEAL FOR NO RI G HT OF APPEAL
TO THE HONORABLE COURT OF APPEALS:
Comes now DAVID DEVIN TREVINO , Appellant, by and through undersigned counsel, in re ply to the order of this Honorable Court dated October
21 , 2015 , shows the Court the f ollowing:
I. Procedural history: Appellant was charged by indictment in cause number 201 5CR 475 0 with theft, $1,500 - $20,000, alleged to have been committed in Bexar County, Texas, on or about April 2, 2014 . (CR , 4 ). 1
On August 31, 201 5 , p ursuant to a written plea agreement with the State, Appellant pleaded nolo contendere to the underlying offense

. (CR , 1 4- 19 , 20

- 33 ).

1 A state jail felony , in violation of T EX

. P ENAL C ODE §§ 31.03(a) & (b) (4)(A) (West 2011)

. The indictment al so alleged unauthorized use of a vehicle, but the State did not proceed on that count. ACCEPTED 04-15-00592-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/2/2015 1:57:06 PM KEITH HOTTLE CLERK2 As part of the plea agreement, Appellant waived the right of appeal in writing. (CR , 1 9 ). On September 3, 2015 , the trial court, the Honorable Raymon d Angelin i , Senior Judge sitting by assignment, followed the terms of the plea agreement and sentenced Appellant to a term of two years of confine ment in the Texas Department of Criminal Justice

– State Jail Division , suspended and prob ated for four years, plu s a fine of $1,500 and restitution in the amount of $ 8,158.54 . (CR , 42

- 43 ). The trial court certified that this is a plea

- bargain case, and Appellant has “NO right of appeal.” (CR , 41 ). By his signature, Appellant ackno wledged that he
was informed that he has no right of appeal in this case. (CR , 4 1 ).
A ppellant filed a notice of appeal , through counsel, on September 21, 2015.
The n o tice of appeal referenced a motion to determine resti tution filed by trial
counsel. (CR , 47

- 48 ). On September 24, 2015 , the trial court appointed the Be xar County Public Defender ’ s Office to represent Appellant in this attempted appeal. (CR, 50).
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 , 14

- 19 ) . As part of the plea agreement, Appellant waived the right of appeal in writing. (CR , 19 ). The trial court certified that this is a plea

- bargain case,3 and Appellant has “NO right of appeal.” (CR , 4 1 ). Appellant signed that notice. (CR , 4 1 ). 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 rul es.” T EX
. R. A PP
. 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 T EX
. R. A PP
. 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. Se e 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.
Stat e , 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)

. III. Relief available to Appellant:
Mr. Trevino ’ s issue relate s to the restitution order . The pre
- printed plea barg ain agreement states “ Restitution to be determined by the Court thr ough Community S u pervision office. ” Handwritten on the agreement , u n der “ Other ” is4 the following: “ Restitution if any t o be paid before fine

... . ” This agreement bears the date August 31, 2015. (CR, 19). The judg ment states that Mr. Trevino was sentenced on September 3, 2015. (CR, 42

- 43). The certification of right of appeal
is dated September 3, 2015 (CR, 14 ), as are the conditions of probation (CR, 37

- 41). The conditions s tate the amount of restitution as $8,158.54 ( CR, 37).
Condition No. 28 assesses a 18 0

- day jail term, beginning Se ptember 3, 2015, and

states “ Defendant may be released early if restitution is pa i d. ” ( CR, 39 )

. 2
On October 5, 2015, trial cou n sel timely filed a motion for new trial. 3 The
motion complained of the trial court ’ s limitation of cross

- examinatio n of the complainant , the denial of a pre

- s e ntence inves t i g a tion , the denial of all o c ution , and the denial of due proc ess rights, all at the restitution/sentencing hearing. (Supp. CR, 3

- 1 5 ).
The plea bargain, the waiver of appeal, the certification of r ight of appeal,
and the motion for new trial are all inter connected in this case. T h e plea bargain provided that re s t i tution was to be determined by the probation department. The

amount of restitution was determined, after the plea bargain was entered into but prior to sentencing

. There is unpublished authority that such a plea bargain agreement is not appealable if the defendant was afforded the opportunity t o have a

2 T here is a subtle but very real difference between this judgment reci tation and the trial court ’ s oral pronouncement : “ I ’ m going to give him 180 days in the Bexar C o unty Jail until that money is paid. ” (Supp. CR, 11). This is one of the b a s es for the motion for new trial. 3 The motion was time ly because the 30 t h day after sentenced, O c tober 3, 2 015, was a Saturday.5 restitution hearing prior to sentencing

. Stretcher v. State , No. 06

- 08

- 00 2 33

- CR, 2009 Tex. App. LEXIS 8 558 at *8

- *9 , 2009 WL 3672 882 (Tex. App.

– T e xarkana Nov. 6, 2009, no pet.)(mem. op., not designated for publication). The m o tion for
new trial and i ts attachments makes it clear that Mr. Trevino had a restitution hearing prior to sentencing. ( Supp

. CR, 3

- 15) . There f o re, the plea bar g ain is not appealable. Furthermore, Mr. Trevino waived appeal. (CR , 19). A waiver of appeal made contemporaneously with a plea and before sentencing is b inding

. Buck v.
State , 45 S.W.3d 275, 277

- 78 (Tex. App.

– Houston [1 st Dist.] 20 01, no pet.). The motion for new trial was timely filed and may still be heard and, i f
successf ul, lead to the relief sought by trial counsel. As the Court of Criminal Appe a l s has said, a valid, express waiver of appea l does not waive a defendant ’ s right to file a motion for new trial. Lundgren v. State , 434 S.W.3d 5 9 4, 599

- 60 0 (Tex. Crim. App. 2 0 14). T h at is the proper remedy rather than a direct appeal.
Alt hough the Court of Appeals is required to dismiss this this appeal, Appellant may fil e an application for a writ of habeas corpus pursuant to article
11.07 2 of the Texas Code of Criminal Procedure , after the mandate is issued , i f he does not get relief from his motion for new trial

.6 WHEREFORE, Appellant, by and through undersigned counsel, is compelled to concede that the Honorable Court of Appeals and must dismiss th is appeal for th e reason s stated above

. Respectfully submitted,

/s/ Michael D. Robbins MICHAEL D. ROBBINS Assistant Public Defender Paul Elizondo Tower 101 W. Nueva St., Suite 3 7 0 San Antonio, Texas 7820 5 Bar No. 16984600 (210) 335

- 0701 FAX (210) 335

- 0707 mrobbins@bexar.org
ATTORNEY FOR APPELLANT7 C ERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing response has been emailed to the B exar C ounty District Attorney’s Office , Appellate Division , Paul Elizondo Tower, 101 W. Nueva St., Suite 7 1 0 , San Antonio, Texas 7820 5, on November 3 , 2015

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