COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00032-CR

PHILLIP JEROME SIMMONS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Phillip 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 twenty 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 

 

1See 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 Brady2evidence, which was a

statement by a handwriting analyst hired by the complainant’s retained counsel.

The handwriting expert had concluded that he was unable to determine whether 

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

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

following day, the State filed another notice of Brady evidence: the facts 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 bills of lading and (2) a 2004 theft 

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

because the fuel pull 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;

 

2Brady 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;

Although 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 Simmons 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 Sadiq LNU, and the State was 

not able to contact them.

Finally, also on the day of trial, the State 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 Security 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 

Appellant’s motion. In the hearing on the motion for continuance, the State 

explained its failure to provide the information in a timely manner by stating 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 due, and 
4

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 trial preparation 

began in earnest.

Nevertheless, the State 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.3The 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 

suggested that the trial court’s denial of his motion for continuance influenced his 

 

3See 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 proposition 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 disclose 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 prosecutors are not required to disclose Brady

impeachment evidence before entering into plea bargain).

4See 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 did Appellant except from his 

waiver of pretrial motions the motion for continuance. Although the trial court

certified his right to appeal, by 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 this 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 waived,

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 motions 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 

 

5Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).

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

sentencing).
6

for continuance by later waiving 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