## COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02

- 1 2

- 00 032

- CR

PHILLIP JEROME SIMMO NS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213 TH DISTRICT COURT OF TARRANT COUNTY

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### MEMORANDUM OPINION 1

---------- Appel lant Phil l ip Jerome Simmons , a fuel driver, pled guilty to theft of
property (gasohol and fuel oil) valued in the aggregate at $200,000 , pursuant to a
single scheme or continuing course of conduct , and the trial court convicted him

and sentenced him to twe nty years’ confinement

. In one issue, Appellant contends that the trial court erred by denying his

motion for continuance. Because we hold that Appellant abandoned his

1 See Tex. R. App. P. 47.4.2

complaint by signing a written waiver of his pretrial motions and appeal in

conjunction with his guilty plea , we overrule his issue and affirm the trial court’s

judgment.

Ten days before trial, the State disclosed Brady 2 evidence, which was a
statement by a handwriting analys t hired by the complainant’s retained counsel

. The handwriting exp ert had concluded that he was unable to determine whether

Appellant had signed the relevant bills of lading. F our days before trial, the State

disclosed further Brady evidence, the criminal history of two witnesses. The

following day, the State filed ano ther notice of Brady evidence : the fact s that (1)

Detective Waller of the Dallas Police Department had stated that he did not

pursue charges against Appellant because the handwriting expert was unable to

offer an opinion regarding the signature on the bil ls of lading and (2) a 2004 theft

of fuel case against Appellant in Houston had been classified as “ unfounded”

because the fuel p ull had occurred in Pasadena , not Houston.

On the day of trial, the State filed a fourth supplemental notice of Brady

evidence. In it, the State disclosed the following:

Rafiq Merchant denied knowing Appellant but later identified him in a photo lineup as the person from whom he had purchased fuel ;
Mary Simmons had told Landmark Chevrolet that she and Appellant were purchasing a Corvette with cash because they were owners and operators of a truck;

2 Brady v. Maryland , 373 U.S. 83

, 83 S. Ct. 1194 (1963).3

Ali Shajhan had testified before the grand jury that he did not know Appellant, but the phone number of the person from whom he had bought the gasoline was Appellant’s ;
Rafiq Manjee had attempted to extort money from State’s witness Rafiq Merchant;

A lthough there were no current deals with Rafiq Merchant or with Suman Nepal, the State had attempted to make a deal with Rafiq Merchant

, but he had been unable to make restitution ;
Mary Simmon s was on the signature card with Appellant at Woodforest National Bank

, and cash had been deposited into the account after the thefts;
Detective Waller of the Dallas Police Department told Tarrant County that he was going to send the bills of lading to the USSS for analysis , but he did not follow up and instead had stopped his investigation due to his time restrictions and caseload; and, finally,
Rafiq Merchant had brokered several deals with other Middle Eastern males, two of whom were Ashraf Moten and Sad iq LNU, and the State was not able to contact them.
Finally, a lso on the day of trial, the S tate gave another notice of Brady

evidence in which the State reported that Appellant had made a purchase from

Porter Truck Sales but that Appellant’s Social Securi ty number recorded in the

transaction differed from his actual Social Security number by one number.

Appellant filed a motion for continuance, requesting additional time to

investigate the numerous last

- minute Brady disclosures. The trial court denied

App ellant’s motion. In the hearing on the motion for continuance, t he State

explained its failure to provide the information in a timely manner by stat ing that it

had been willing to recommend deferred adjudication if Appellant made

restitution. He was able to pay only a small portion of the restitution d ue , and4

during the period of time that he was attempting to make the payments, the State

was not preparing for trial. It was only after it became clear that Appellant would

be unable to make the restitution that a trial date was set and tria l preparation

beg a n in earnest.

Nevertheless, the S tate bears the obligation of disclosing material

exculpatory or mitigating Brady evidence whether trial preparation has begun or

whether a defendant is considering a plea offer. 3 The existence of such evidence
can greatly influence both the offer the State makes and the defendant’s decision

to accept or reject the offer. The fact that a plea offer is on the table does not
justify the State’s failure to disclose material exculpatory or mitigating evidence

. 4

In this case, however, Appellant entered his guilty plea and waived all

pretrial motions in writing

. At the plea hearing, neither Appellant nor his counsel

suggest ed that the trial court’s denial of his motion for cont inuance influenced his

3 See Ex parte Ghahremani , 332 S.W.3d 470, 474 n.5 (Tex. Crim. App. 2011) (citing Brady , 373 U.S. at 87, 83 S. Ct. at 1196

– 97, for the propo sition that due process is violated when the State refuses to disclose requested evidence favorable to the defendant regarding either punishment or guilt, and United States v. Bagley

, 473 U.S. 667, 681

– 82, 105 S. Ct. 3375, 3383 (1985), for the proposition that due process requires reversal if the State, regardless of whether the defense requests, fails to disclose material mitigating evidence); Ex parte Lewis

, 587 S.W.2d 697, 701 (Tex. Crim. App. [Panel Op.] 1979) (holding that the State has a duty to discl ose Brady evidence to defendants who plead guilty as well as those who go to trial); but cf. United States v. Ruiz , 536 U.S. 622, 630

– 33, 122 S. Ct. 2455

– 57 (2002) (holding, in case in which defendant ultimately pled guilty without a bargain, that prosecut ors are not required to disclose Brady impeachment evidence before entering into plea bargain).

4 See Ghahremani , 332 S.W.3d at 474 n.5; see also Bagley

, 473 U.S. at 681

– 82, 105 S. Ct. at 3383; Brady, 373 U.S. at 87, 83 S. Ct. at 1196

– 97.5

decision to plead guilty. Nowhere in the record d id Appellant except from his

waiver of pretrial motions the motion for continuance. Although the trial court
certified his right to appeal, b y waiving all pretrial motions, Appellant abandoned

his complaint regarding the late disclosure of Brady material, his request for

continuance, and the trial court’s adverse ruling on that request.

Additionally, Appellant, in writing, stated

, “I give up and waive any and all

rights of appeal in t his case.” Although case law is clear that a boilerplate waiver

of the right to appeal without a plea bargain agreement does not preclude a
defendant’s appealing trial error because error that has not yet occurred cannot

be intelligently and knowingly wai ved

, 5 the circumstances of Appellant’s waiver

are distinguishable

. Here, Appellant filed no motions (other than a motion to

continue the sentencing hearing) after entering his guilty plea. Appellant

abandoned his pretrial motions and waived his right to appeal. Clearly at the
time he entered his waivers, he was aware of the trial court’s ruling on his motion

for continuance. It is difficult to understand how abandonment of a pretrial

motion and waiver of appeal regarding known rulings on pretrial motion s could

automatically be held to be made other than knowingly and intelligently. 6

Under the facts of this case and the record before this court, we hold that
Appellant abandoned his complaint regarding the trial court’s denial of his motion

5 Monreal v. State

, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).

6 See id . at 616 (noting that defendant waived his right of appeal after sentencing).6

for continuance by later waiv ing his pretrial motions and his right to appeal. We
therefore overrule Appellant’s sole issue and affirm the trial court’s judgment.

LEE ANN DAUPHINOT JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY , JJ.

DO NOT PUBLISH Tex. R. App

. P. 47.2 (b)

DELIVERED: October 25, 2012