IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO.# 13-13-00327-CR

ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

In the Court of Appeals for the Thirteenth District of

Texas

Court of Appeals of Texas,

Corpus Christi-Edinburg

No.13–13–00327–CR 

Noel Gonzalez, Appellant,

v.

The State of Texas, Appellee.

NUMBER 13–13–00327–CR Delivered and filed February 5,

2015

On appeal from the 103rd District Court of Cameron

County, Texas. Trial Court No.2012-DCR-2380-D

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Larry Warner

Counsel for Noel Gonzalez

3109 Banyan Circle

Harlingen, Texas 78550

Phone (956)230-0361 

Email: office@larrywarner.com

Texas Bar#20871500;

USDC, SDTX 1230; 

Board Certified, Criminal Law,

Texas Board of Legal

Specialization(1983)

Member of the Bar of the

Supreme Court of the United

States (1984)

Page 1 of 23
Pursuant to TEX.R.APP.P.68.4,Appellant provides the

following identity of parties and counsel:

IDENTITY OF PARTIES AND COUNSEL

1. Noel Gonzalez, Petitioner

2. Hon. Luis V. Saenz, District Attorney, 964 East

Harrison; Brownsville, TX 78520

Attorney at trial and on appeal and on Petition for

Discretionary Review for the State;

3. Hon. Noe Robles, 23331 Tamm Ln, Harlingen, TX 78550

Attorney at trial for Defendant.

4. Hon. Rene Gonzalez, Assistant Cameron County District

Attorney, Attorney for Appellant on Appeal.

5. Hon. Larry Warner, Attorney for Petitioner on

Petition for Discretionary Review and on appeal, 3109

Banyan Circle, Harlingen, Texas 78550 

Page 2 of 23
Pursuant to TEX.R.APP.P.68.4(a), Petitioner provides this

Table of Contents with reference to the pages of the

Petition, indicating the subject of each ground or

question presented for review.

TABLE OF CONTENTS

PAGE

Table of Contents.. . . . . . . . . . . . . . . . 3 - 4

Index of Authorities .. . . . . . . . . . . . . . . . 5

Statement re oral argument .. . . . . . . . . . . . . 6

Statement of the case.. . . . . . . . . . . . . . 7 - 8

Statement of procedural history.. . . . . . . . . . . 9

Grounds for Review. . . . . . . . . . . . . . . 10 - 11

1. The Court of Appeals decision conflicts with

another Court of Appeals decision on the same issue. The

issue is whether a Court of Appeals should use its

plenary power to reinstate a dismissed appeal. The

decision of the other Court of Appeals is Bomar v. Walls

Regional Hospital,971 S.W.2d 670(Tex.App.–Waco

1998,pet.gntd,r.o.g.9 S.W.3d 805)

2. The record is tainted with perjury. The record

shows that the defendant told the judge he had no history

of mental problems. At the hearing on the motion for new

trial, his mother testified that his mental problems and

hospitalizations were lifelong. The Defendant said his

guilty-plea lawyer told him to lie to the judge about

those problems. The cold record shows that he did just

that. The state did not call that guilty-plea lawyer at

the motion for new trial. Communist Party of the United

States v. Subversive Activities Control

Board,367U.S.1,19(1967)

Page 3 of 23
“Finding that the Party's allegations of

perjury had not been denied by the Attorney

General, and concluding that the

registration order based on a record

impugned by a charge of perjurious testimony

on the part of three witnesses whose

evidence constituted a not insubstantial

portion of the Government's case could not

stand, this Court remanded to the Board ‘to

make certain that (it) bases its findings

upon untainted evidence.’ 351 U.S. 115, 125,

76 S.Ct. 663, 668, 100 L.Ed. 1003.”

Communist Party of the United States v.

S u b v e r s i v e A c t i v i t i e s C o n t r o l

Board,367U.S.1,19(1967)

Argument.........................................12 - 18

Certificate of Service............................19 - 20

Appendix...............................................21 

Certificate of Compliance..........................22 - 23

Page 4 of 23
Pursuant to TEX.R.APP.P.68.4(b), Petitioner provides an

Index of Authorities, arranged alphabetically and

indicating the pages of the petition where the authorities

are cited.

INDEX OF AUTHORITIES

CASES: PAGES

Communist Party of the United States v. Subversive

Activities Control Board, 367U.S.1, 19

(1967).......................................3, 6, 10, 14

An appellate court may remand for investigation

uncontroverted instances of perjury in the record.

Bomar v. Walls Regional Hospital,971 S.W.2d

670(Tex.App.–Waco 1998,pet.gntd,r.o.g.9 S.W.3d

805).....................................3, 8, 10, 12, 13

A Court of Appeals has plenary power

to reinstate a dismissed appeal.

Midkiff v. Hancock East Texas Sanitation, Inc.,996 S.W.2d

414(Tex.App.–Beaumont 1999,no pet.)...................13

The matter of plenary jurisdiction is important to the

jurisprudence of the state

Ex Parte Sledge, 391S.W.3d104, 105hn1(Tex.Crim.App.

2013).................................................14

While we are not unsympathetic to the applicant's

claim, this Court lacks the authority to grant him relief.

Ex parte Ghahremani,332 S.W.3d 470(Tex.Crim. App.

2011).................................................15

The Court of Criminal Appeals of Texas recently

granted relief to one whose trial was besmirched by

perjury.

Page 5 of 23
Pursuant to TEX.R.APP.P. 68.4(c), Petitioner includes a

short statement of why oral argument would be helpful.

STATEMENT RE ORAL ARGUMENT

Oral argument would be helpful to the decisional

process because counsel and the Judges of the Court of

Criminal Appeals could discuss when a Court of Appeals

should use its discretion to reinstate an appeal dismissed

for failure to file a brief, when counsel represented that

he had timely prepared the brief but was mistaken in

believing that it had been filed.

The Court and Counsel could discuss whether the

state’s failing to call the lawyer at the hearing on the

motion for new trial to respond to the allegation that

that lawyer told the defendant to lie to the judge about

not having any history of mental problems was the same

conduct as the Attorney General’s not denying the

Petitioner’s allegations of perjury in Communist Party of

the United States v. Subversive Activities Control

Board,367U.S.1,19(1967). That failure to deny prompted a

remand.

Page 6 of 23
Pursuant to TEX.R.APP.P.68.4(d), Petitioner provides a

statement of the case, noting briefly the nature of the

case, and reserving the details of the case for statement

with the pertinent grounds or questions.

STATEMENT OF THE CASE

The nature of the case was a prosecution of Petitioner

for sexual assault on a child, multiple counts. It is now

a review of the action of the Court of Appeals for the

Thirteenth District in failing to reinstate Petitioner’s

appeal.

Petitioner pleaded guilty and submitted the matter to

the Judge. He had had mental problems. He waived his right

to appeal.

The Judge found him guilty. The judge imposed a

sentence of confinement in the penitentiary. Defendant

changed counsel and moved for a new trial, averring that

his “plead-guilty” lawyer had told him to lie to the Judge

and say that he had never had any mental problems. The

evidence at the hearing on the Motion for New Trial from

the defendant’s mother tended to show that he had indeed

had a lifelong history of mental problems and

hospitalizations. The cold record plainly shows that he

did tell the Judge that he had not had any mental

problems. The state did not call defendant’s “pleadguilty” lawyer as a witness at the hearing on the motion

for new trial. 

Petitioner timely filed a Notice of Appeal to the

Court of Appeals for the Thirteenth District of Texas. 

Page 7 of 23
The Court of Appeals dismissed Petitioner’s appeal,

holding his waiver of appeal effective.

Defendant filed a Motion to Reinstate and Brief in

Support, relying on Bomar v. Walls Regional Hospital,971

S.W.2d 670(Tex.App.–Waco 1998,pet.gntd,r.o.g.9 S.W.3d 805)

The Court of Appeals denied the Motion to Reinstate.

Petitioner sought and was granted an extension of time

to file this Petition for Discretionary Review.

Page 8 of 23
Pursuant to TEX.R.APP.P.68.4(e), Petitioner provides a

Statement of Procedural History.

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The court of appeals is the Court of Appeals for the

Thirteenth District of Texas.

Re: TEX.R.APP.P.10.5(b)(3)(B), the date of Court of

Appeals’ opinion is February5. 2015. The decision denying

reinstatement is dated August 19, 2015.

Re: TEX.R.APP.P.10.5(b)(3)(C) the case number in the Court

of Appeals is No. 13-13-00327-CR

Re: TEX.R.APP.P.10.5(b)(3) (D), the date every motion for

rehearing or en banc reconsideration was filed.

On July 16, 2015, Petitioner filed a motion to

reinstate appeal. On August 3, 2015, the State requested

the Court to Deny Appellant’s Motion to Reinstate Appeal.

On July 17,2015, the Court of Appeals, 13

th District

Court received Appelant’s Brief. On July 20, 2015, the

Court requested the state to respond to Appellant’s Motion

to Reinstate Appeal by July 30, 2015. Response was filed

August 3, 2015.

On August 19, 2015, Motion to Reinstate Appeal was

denied by the Court.Pursuant to TEX.R.APP.P.68.4(f),

Petitioner states briefly, without argument, the questions

presented for review, expressed in the terms and

circumstances of the case, but without unnecessary detail.

Page 9 of 23
GROUNDS FOR REVIEW

Grounds for Review. . . . . . . . . . . . . . . . . . .

1. The Court of Appeals decision conflicts with

another Court of Appeals decision on the same issue. The

issue is whether a Court of Appeals should use its plenary

power to reinstate a dismissed appeal. The decision of the

other Court of Appeals is Bomar v. Walls Regional

H o s p i t a l , 9 7 1 S . W . 2 d 6 7 0 ( T e x . A p p . – W a c o

1998,pet.gntd,r.o.g.9 S.W.3d 805)

2. The record is tainted with perjury. The record

shows that the defendant told the judge he had no history

of mental problems. At the hearing on the motion for new

trial, his mother testified that his mental problems and

hospitalizations were lifelong. The Defendant said his

guilty-plea lawyer told him to lie to the judge about

those problems. The cold record shows that he did just

that. The state did not call that guilty-plea lawyer at

the motion for new trial. Communist Party of the United

States v. Subversive Activities Control

Board,367U.S.1,19(1967)

Page 10 of 23
“Finding that the Party's allegations of

perjury had not been denied by the Attorney

General, and concluding that the

registration order based on a record

impugned by a charge of perjurious testimony

on the part of three witnesses whose

evidence constituted a not insubstantial

portion of the Government's case could not

stand, this Court remanded to the Board ‘to

make certain that (it) bases its findings

upon untainted evidence.’ 351 U.S. 115, 125,

76 S.Ct. 663, 668, 100 L.Ed. 1003.”

Communist Party of the United States v.

S u b v e r s i v e A c t i v i t i e s C o n t r o l

Board,367U.S.1,19(1967)

Page 11 of 23
Pursuant to TEX.R.APP.P.68.4(g), Petitioner provides a

direct and concise argument, with supporting authorities,

amplifying the reasons for granting review.

ARGUMENT

1. The Court of Appeals decision conflicts with

another Court of Appeals decision on the same issue. The

issue is whether a Court of Appeals should use its plenary

power to reinstate a dismissed appeal. The decision of the

other Court of Appeals is Bomar v. Walls Regional

H o s p i t a l , 9 7 1 S . W . 2 d 6 7 0 ( T e x . A p p . – W a c o

1998,pet.gntd,r.o.g.9 S.W.3d 805)

The appellate lawyer did not file the brief on time.

The Court of Appeals dismissed the appeal, holding

that Appellant had waived his right to appeal in a plea

bargain.

The appellate lawyer tendered a brief on the merits

as well as a motion requesting that the Court of Appeals

use its plenary power to reinstate the appeal. He said

that he had timely prepared the brief but was mistaken in

thinking that it had indeed been filed. The brief on the

merits assailed Appellant’s mental competence to execute

an effective waiver; it also alleged that the lawyer who

Page 12 of 23
had Appellant plead guilty had told Appellant to lie to

the Judge and say that Appellant had no history of mental

problems. Appellant’s mother testified at the hearing on

the motion for new trial that Appellant had indeed had a

lengthy history of mental problems and hospitalizations.

The appellate lawyer cited the Court of Appeals to 

Bomar v. Walls Regional Hospital,971 S.W.2d

670(Tex.App.–Waco 1998,pet.gntd,r.o.g.9 S.W.3d 805), in

which the Tenth Court of Appeals held a motion to

reinstate untimely but reinstated the appeal nonetheless,

and asked the Thirteenth Court of Appeals to use its

plenary power to reinstate the appeal. It did not.

The Court of Criminal Appeals of Texas should grant

this petition and should allow full briefing to determine

that the Court of Appeals did indeed have plenary

jurisdiction to reinstate the appeal. The matter of

plenary jurisdiction is important to the jurisprudence of

the state, in addition to the formal reason stated in this

petition. In addition to Bomar, the matter arose in

Midkiff v. Hancock East Texas Sanitation, Inc.,996 S.W.2d

414(Tex.App.–Beaumont 1999,no pet.)

Page 13 of 23
This Court recently noted lack of jurisdiction in a

post-judgment proceeding. “While we are not unsympathetic

to the applicant's claim, this Court lacks the authority

to grant him relief.” Ex Parte Sledge, 391S.W.3d104,

105hn1(Tex.Crim.App.2013)

The Court of Criminal Appeals should grant this

petition to determine that the Court of Appeals did indeed

have plenary jurisdiction to reinstate the appeal. 

2. The record is tainted with perjury. The record

shows that the defendant told the judge he had no history

of mental problems. At the hearing on the motion for new

trial, his mother testified that his mental problems and

hospitalizations were lifelong. The Defendant said his

guilty-plea lawyer told him to lie to the judge about

those problems. The cold record shows that he did just

that. The state did not call that guilty-plea lawyer at

the motion for new trial. Communist Party of the United

States v. Subversive Activities Control

Board,367U.S.1,19(1967)

“Finding that the Party's allegations of

perjury had not been denied by the Attorney

Page 14 of 23
General, and concluding that the registration

order based on a record impugned by a charge

of perjurious testimony on the part of three

witnesses whose evidence constituted a not

insubstantial portion of the Government's

case could not stand, this Court remanded to

the Board ‘to make certain that (it) bases

its findings upon untainted evidence.’ 351

U.S. 115, 125, 76 S.Ct. 663, 668, 100 L.Ed.

1003.” Communist Party of the United States

v. Subversive Activities Control

Board,367U.S.1,19(1967)

The Court of Criminal Appeals of Texas recently

granted relief to one whose trial was besmirched by

perjury. 332 S.W.3d 470(Tex.Crim. App.2011)

Here, the defendant himself commits aggravated perjury

at the instance of his counsel, telling the Judge that he

has no history of mental problems or hospitalizations; the

uncountered, uncontradicted evidence at the motion for new

trial showed that he had a lifelong history of both

problems and hospitalizations.

Normally we do not let people profit from their own

wrongs. Aggravated perjury is a crime against the justice

system itself. But here it was at the instance of an

officer of the Court, the initial defense lawyer, who told

the defendant to lie to the Judge and say that he did not

Page 15 of 23
have mental problems or hospitalizations when he did in

fact have those problems and hospitalizations. Here, the

defendant, according to the testimony at the motion for

new trial, had a history of mental problems and

hospitalizations. 

So, the testimony about the mental problems and the

allegation that the “plead guilty” lawyer told the

defendant to lie to the judge about whether the defendant

ever had any mental problems or hospitalizations, combine

to take this case out of the realm of those in which we do

not let people profit from their own wrongs...here the

defendant’s lying to the judge about whether he had mental

problems or not.

If he was incompetent at the time of the plea, he was

not responsible for making that false statement to the

judge.

If he was competent but followed the advice of counsel

to lie to the judge, the system must react to its officer

impelling perjury.

If the Judge had known about the history and

hospitalizations at the plea, she should have at least

Page 16 of 23
ordered an examination to be sure of the defendant’s

competence. Hearing from the mother at the motion for new

trial about defendant’s history and hospitalizations, the

Judge should have granted a new trial.

The Court of Appeals should have determined that it

had plenary jurisdiction to reinstate the dismissed the

appeal, considering the seriousness of the allegation of

perjury and the explanation that the lawyer had prepared

the brief and was mistaken in thinking that the brief had

been filed, when it had not been filed.

CONCLUSION AND REQUEST FOR RELIEF

The Court of Criminal Appeals should grant this

Petition for Discretionary Review, considering that the

petition deals with plenary jurisdiction and with

allegations of a record tainted by perjury.

The Court of Criminal Appeals should allow full

briefing.

The Court of Criminal Appeals should remand for an

investigation of the averments of perjury, given that the

prosecutor did not call the defense lawyer, who, said the

defendant in the motion for new trial, told the defendant

Page 17 of 23
to lie to the judge and say that the defendant did not

have a history of mental problems and hospitalizations,

when, in fact, he did.

The Court of Criminal Appeals should require a new

trial.

Respectfully submitted

September 18, 2015

B y : 

Larry Warner

Attorney for Noel Gonzalez

3109 Banyan Drive

Harlingen, Texas 78550

Office: 956 230 0361

Facsimile: 1-866-408-1968

Email: office@larrywarner.com

State Bar of TX 20871500; 

USDC, SDTX 1230(1981)

Board Certified, Criminal Law, 

Texas Board Legal

Specialization(1983)

Member of the Bar of the 

Supreme Court of the United

States(1984)

Page 18 of 23
IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO.# 13-13-00327-CR

ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

In the Court of Appeals for the Thirteenth District of

Texas

Court of Appeals of Texas,

Corpus Christi-Edinburg

No.13–13–00327–CR 

Noel Gonzalez, Appellant,

v.

The State of Texas, Appellee.

NUMBER 13–13–00327–CR Delivered and filed February 5,

2015

On appeal from the 103rd District Court of Cameron

County, Texas. Trial Court No.2012-DCR-2380-D

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

CERTIFICATE OF SERVICE

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

This is to certify that a true and correct copy of the

foregoing APPELLANT’S PETITION FOR DISCRETIONARY REVIEW,

was sent Electronically Via EFC to the following counsel

of record on September 10, 2015, the day it was filed.

LUIS V. SAENZ, Cameron County District Attorney’s

Office, 964 E. Harrison, Brownsville, Texas 78520. Phone

(956) 544-0849. Fax (956) 544-0869. Email:

district.attorney@co.cameron.tx.us

LAW OFFICE OF LARRY WARNER

RESPECTFULLY SUBMITTED

September 18, 2015

By:

Page 19 of 23
 

 

Larry Warner, 

Counsel for Noel Gonzalez

3109 Banyan Circle

Harlingen, Texas 78550

Phone: (956)230-0361 

Facsimile: (866)408-1968

office@larrywarner.com

State Bar of TX 20871500; 

USDC,SDTX 1230(1981)

Board Certified, Criminal Law, 

Texas Board Legal

Specialization(1983)

Member of the Bar of the 

Supreme Court of the 

United States(1984)

Page 20 of 23
IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO.# 13-13-00327-CR

ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

In the Court of Appeals for the Thirteenth District of

Texas

Court of Appeals of Texas,

Corpus Christi-Edinburg

No.13–13–00327–CR 

Noel Gonzalez, Appellant,

v.

The State of Texas, Appellee.

NUMBER 13–13–00327–CR Delivered and filed February 5,

2015

On appeal from the 103rd District Court of Cameron

County, Texas. Trial Court No.2012-DCR-2380-D

********************************************************

APPENDIX

********************************************************

Order

A copy of the opinion of the Court of Appeals for

the Thirteenth District is attached.

Page 21 of 23
IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO.# 13-13-00327-CR

ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

In the Court of Appeals for the Thirteenth District of

Texas

Court of Appeals of Texas,

Corpus Christi-Edinburg

No.13–13–00327–CR 

Noel Gonzalez, Appellant,

v.

The State of Texas, Appellee.

NUMBER 13–13–00327–CR Delivered and filed February 5,

2015

On appeal from the 103rd District Court of Cameron

County, Texas. Trial Court No.2012-DCR-2380-D

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

CERTIFICATE OF COMPLIANCE

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

1. This brief complies with the type-volume limitation

of FED. R. APP. P. 32(a)(7)(B) because: this brief

contains 3368 words, excluding the parts of the

brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

2. This brief uses a monospaced typeface and contains

695 lines of text, excluding the parts of the brief

exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

3. This brief complies with the typeface requirements

of FED. R. APP. P. 32(a)(5) and the type style

requirements of FED. R. APP. P. 32(a)(6) because:

this brief has been prepared in a proportionally

spaced typeface using Word Perfect X6 in Courier

Page 22 of 23
New in font size 14pt.

The undersigned understands a material

misrepresentation in completing this certificate,

or circumvention of the type-volume limits in 5th

CIR. R. 32.2.7, may result in the court’s striking

the brief and imposing sanctions against the person

signing the brief.

LAW OFFICE OF LARRY WARNER

RESPECTFULLY SUBMITTED

September 18, 2015

By:

 

 

Larry Warner, 

Counsel for Noel Gonzalez

3109 Banyan Circle

Harlingen, Texas 78550

Phone: (956)230-0361 

Facsimile: (866)408-1968

office@larrywarner.com

State Bar of Tx 20871500; 

USDC,SDTX 1230(1981)

Board Certified, Criminal Law, 

Texas Board Legal

Specialization(1983)

Member of the Bar of the 

Supreme Court of the 

United States(1984)

Page 23 of 23
 

NUMBER 13-13-00327-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

____________________________________________________________

NOEL GONZALEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________

On appeal from the 103rd District Court

of Cameron County, Texas.

____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion Per Curiam

Appellant, Noel Gonzalez, filed a notice of appeal in this Court on June 14, 2013. 

On June 27, 2013, the trial court certified that appellant waived his right to appeal. See

TEX. R. APP. P. 25.2(a)(2). On June 28, 2013, this Court notified appellant’s prior counsel 

of the trial court’s certification and ordered counsel to: (1) review the record; (2) determine 

whether appellant has a right to appeal; and (3) forward to this Court by letter, counsel’s 
2

findings as to whether appellant has a right to appeal and/or advise this Court as to the 

existence of any amended certification. We further ordered counsel to file a motion with 

this Court within thirty days of receipt of the notice, “identifying and explaining substantive 

reasons why appellant has a right to appeal” if appellant’s counsel determined that 

appellant had the right to appeal. See TEX. R. APP. P. 44.3; 44.4. No response was 

received from appellant’s counsel. On September 3, 2013, we abated the appeal and 

remanded the case to the trial court for a hearing to determine why counsel had failed to 

comply with this Court’s June 28, 2013 order (the “44.3 Order”). On November 7, 2013, 

appellant’s counsel filed “Counsel’s Response to Order of the [Thirteenth] Court of 

Appeals Regarding Abatement” stating that counsel wished to continue representing 

appellant and that counsel could file a brief within sixty days. Counsel’s response does 

not establish that the trial court’s certification currently on file is incorrect or that appellant 

otherwise has a right to appeal.

Following the abatement, on November 7, 2013, new appellate counsel filed an 

appearance of counsel for appellant, a response to the abatement order, and a motion 

for leave to file a supplemental response once the record is complete, specifically the 

reporter’s record of the hearing on the motion for new trial. Again, this response does not 

establish that the trial court’s certification currently on file is incorrect or that appellant 

otherwise has a right to appeal.

On February 14, 2014, the reporter’s record was filed and the cause reinstated.

The Court granted appellant’s motion for extension of time to comply with the 44.3 Order

by filing a supplemental response by March 24, 2014. No response to the Court’s 44.3 

Order was received. Thus, on April 15, 2014, we abated the case and remanded the 
3

case to the trial court for a hearing to determine why counsel has failed to comply with 

this Court’s 44.3 Order.

On June 27, 2014, the trial court held a hearing. Counsel’s statements at the 

hearing do not establish that the certification currently on file with this Court is incorrect 

or that appellant otherwise has a right to appeal.1 On September 4, 2014, we reinstated 

the case and gave counsel thirty days to respond to our 44.3 Order and to explain why 

the trial court’s certification is incorrect, if it is. Counsel requested that we extend the due 

date until October 13, 2014, and we granted that request. Counsel has not filed a 

response.

The Texas Rules of Appellate Procedure provide that an appeal must be dismissed 

if the trial court’s certification does not show that the defendant has the right to appeal. 

TEX. R. APP. P. 25.2(d); see id. R. 37.1, 44.3, 44.4. Moreover, we have reviewed the 

record and there is nothing showing that the trial court’s certification currently on file is 

incorrect or that appellant otherwise has the right to appeal.2 See TEX. R APP. P.

25.2(a)(2) (providing that a defendant pleading guilty pursuant to a plea agreement has 

a right to appeal only matters raised by written motion filed and ruled on before trial if the 

punishment imposed by the trial court does not exceed the punishment recommended by 

 

1

Instead, at the hearing, counsel argued that the record was incomplete; therefore, he could not 

determine whether appellant had a right to appeal and could not respond to this Court’s 44.3 Order. The 

trial court stated that appellant had no right to appeal because he pleaded guilty pursuant to a plea 

agreement with the State. However, the trial court granted counsel’s request for a complete record.

2 Pursuant to a plea agreement with the State, appellant pleaded guilty to three counts of 

aggravated sexual assault of a child. The trial court followed the State’s recommendation on punishment 

and assessed the agreed-upon twelve-year sentence. At the plea hearing, the trial court admonished 

appellant orally and in writing that he was waiving his right to an appeal by pleading guilty.

Although appellant filed several pretrial motions, the trial court did not rule on any of those motions 

before appellant pleaded guilty. Also, at a post-trial hearing, the trial court stated that it has not and would 

not grant appellant permission to appeal this case. 
4

the State and agreed upon by the defendant); Chavez v. State, 183 S.W.3d 675, 680 

(Tex. Crim. App. 2006) (“A court of appeals, while having jurisdiction to ascertain whether 

an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss 

a prohibited appeal without further action, regardless of the basis for the appeal.”); Cooper 

v. State, 45 S.W.3d 77, 77 (Tex. Crim. App. 2001) (concluding that rule 25.2(b) forbids a 

plea bargaining defendant from appealing the voluntariness of his plea); Escochea v. 

State, 139 S.W.3d 67, 75 (Tex. App.—Corpus Christi 2004, no pet.) (stating that the 

appellant “waived any appeal of the voluntariness of his plea [and that he waived any 

claim of ineffective assistance] when he pleaded guilty to a felony pursuant to an agreed 

punishment recommendation”). Accordingly, we must DISMISS this appeal.

PER CURIAM

Do not publish. 

TEX. R. APP. P. 47.2(b). 

Delivered and filed the

5th day of February, 2015.
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Envelope 6990268

Case Information

Location Court Of Criminal Appeals

Date Filed 09/18/2015 02:39:26 PM

Case Number PD-1237-15

Case Description

Assigned to Judge

Attorney LARRY WARNER

Firm Name LAW OFFICE OF LARRY WARNER

Filed By LARRY WARNER

Filer Type Not Applicable

Fees

Convenience Fee $0.00

Total Court Case Fees $0.00

Total Court Filing Fees $0.00

Total Court Service Fees $0.00

Total Filing & Service Fees $0.00

Total Service Tax Fees $0.00

Total Provider Service Fees $0.00

Total Provider Tax Fees $0.00

Grand Total $0.00

Payment

Account Name TX REG OPERATING

Transaction Amount $0.00

Transaction Response

Transaction ID 11456456

Order # 006990268-0

Petition for Discretionary Review

Filing Type EFileAndServe

Filing Code Petition for Discretionary Review

Filing Description APPELLANT'S PETITION FOR DISCRETIONARY

REVIEW

Reference Number NOEL GONZALEZ

Comments

Status Rejected

Fees

Court Fee $0.00

Service Fee $0.00

Rejection Information

Rejection

Reason Time Rejection Comment

09/22/2015 This petition was due in the Court of Criminal Appeals on March 9, 2015. The 13th
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Other 01:33:15

PM

Court of Appeals issued mandate in this case on April 27, 2015. Your petition is

untimely; it will be received and scanned, but no action will be taken on this matter.

Documents

Lead Document FINAL PDR.pdf [Original]

eService Details

Name/Email Firm Service Type Status Served Date/Time

Opened

LUIS V, SAENZ

district.attorney@co.cameron.tx.us

DISTRICT'S

ATTORNEY'S

OFFICE

EServe Sent Yes Not Opened

Appendix

Filing Type EFileAndServe

Filing Code Appendix

Filing Description EXHIBIT A

Reference Number NOEL GONZALEZ

Comments

Status Rejected

Fees

Court Fee $0.00

Service Fee $0.00

Rejection Information

Rejection Reason Time Rejection Comment

Other 09/22/2015 01:33:15 PM Same as the petition.

Documents

Lead Document MEMEORANDUM & OPINION -- 020515.pdf [Original]

eService Details

Name/Email Firm Service Type Status Served Date/Time

Opened

LUIS V, SAENZ

district.attorney@co.cameron.tx.us

DISTRICT'S

ATTORNEY'S

OFFICE

EServe Sent Yes Not Opened