No. 04 -15- 00 19 7- CR
IN THE FOURTH COURT OF APPEALS OF TEXAS AT SAN ANTONIO, TEXAS MICHAEL S. EISENHAUER , 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 MICHAEL S. EISENHAUER , Appellant, by and through undersigned counsel, in re ply to the ORDER of this Honorable Court dated April 7, 2015 , and shows the Court the f ollowing:
I. Procedural history: Appellant was charged by indictment in cause number 201 4-CR- 0043 with felony d riving while intoxicated , enhanced with the allegation that Appellant was twice previously convicted of d riving while intoxicated

. The primary offense was alleged to have been committed in Bexar County, Texas, on or about N ovember 9 , 2013

. (CR at 7 ). On N ovember 18 , 201 3 , attorney Brad Kvitna filed a written
appearance as Appellant ’s retained attorney of record. (CR at 4 ). ACCEPTED 04-15-00197-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/15/2015 4:23:59 PM KEITH HOTTLE CLERK2 On February 18 , 2014 , p ursuant to a written plea agreement with the State, Appellant pleaded no contest t o the charged offense . (CR at 10

- 1 1 , 1 3 ) . The parties agreed that the pun ishment assessed would be capped at six years of imprisonment , with a $1,500 fine

. (CR at 1 3 )

. As part of the plea agreement, Appellant agreed in writing to waive the right of appeal. (CR at 1 3 ). The trial court approved Appellant’s waiver and voluntary re linquishment of his known rights in this case, including the right of appeal. (CR at 1 7 ).
On April 4 , 2014 , the trial court, the Honorable Maria Teresa Herr presiding, followed the terms of the plea agreement and sentenced Appellant to six years of imprisonment in the Institutional Division , with a $1,500.00 fine . (CR at 8 4 ). The trial court imposed court costs of $ 5 0 4 .00

. (CR at 8 4 )

. The trial court certified that this is a plea

- bargain case, that Appellant h as “NO right of appeal , ” and that he also waived the right of appeal. (CR at 8 6 ). By his signature, Appellant ackno wledged that he was informed that he has no right of appeal in this case. (CR
at 8 6 )

. Almost a year after he was sentenced, on March 24, 2015, Appellant filed a pro se notice of appeal with the District Clerk. (CR at 9 7

- 101 ). Appellant’s pro se notice of appeal was not timely filed, and nothing in the trial record shows that he
filed a motio n for extension of time to file the notice of appeal

. (CR at 2

- 3 ).3 On April 1, 2015 , the trial court appointed the Bexar County Public Defender ’s Office to represent Appellant in this attempted appeal. (CR at 2 09 ). The clerk’s record was filed on April 6, 2015

. On April 7, 2015 , this Court
ORDERED that this appeal will be dismissed pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure unless Appellant files a response establishing that the notice of appeal was timely filed and causes an amende d trial court certification (showing that Appellant has the right of appeal) to be filed by April
17 , 2015 . This is court

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

. II. No right 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
certification that he has pe rmission 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 Appellant pleaded “ nolo contendere ” to the primary offense pursuant to the terms
of a written plea agreement with the State. (CR at 1 0

- 11, 13 )

. The trial court followed that plea agreement by sentencing Appellant to six years of4 imprisonment . (CR at 1 3 , 8 4 ). The trial court accurately certified th at this is a plea

bargain case, Appellant has “NO right of appeal , ” and also waived the right of appeal. (CR at 8 6 ). Appellant signed that notice. (CR at 8 6 ). Additionally, no written pretrial motions were filed and ruled upon before the plea

- entry hearing. (CR at 2

- 3 ). For these reasons, the trial court’s certification o f the defendant’s right of appeal accurately reflects that this is a plea

- bargain case , the terms of the plea bargain were followed, and Appellant has no right of appeal.
III. Waiver:
A defendant may waive th e right of appeal , as long as the waiver is made “vol untarily, 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 record shows that Appellant waived the right of appeal in writing as part of the plea agreement , and the trial court approved that waiver . (CR at 1 3 , 1 7 ). Undersigned counsel can identify nothing in the clerk’s record to show that the trial court failed to follow the terms of the plea bargain, and nothing shows that Appellant’s written waiver of the right of appeal was involuntary. Since Appellant has validly waived the right of appeal, this Court has not acquired jurisdiction over this case. Marsh v. State , 444 S .W.3d 654, 660 (Tex. Crim. App. 2014)( “... because Appellant had validly waived his right to appeal, the court of appeals never5 acquired jurisdiction. ”). If Appellant now wishes to argue that his plea was involuntary, for example, he will have to raise that a rgument in a post

- conviction writ. He cannot make that argument in this attempted appeal. See T EX .R.A PP .P. 25.2(a)(2).
IV. No jurisdiction: Appellant’s notice of appeal was due to be filed within thirty days after the sentence was imposed in open court. T EX
. R. A PP
. P. 26.2(a)(1). So it was due to be filed by May 5 , 2014. Appellant could have filed a motion for extension of time to file the notice of appeal. T EX
. R. A PP
. P. 26.3. His notice of appeal would have then
been due on May 19 , 201 4 . But he did not fil e a motion for extension of time to file his pro se notice of appeal, and did not file his pro se notice of appeal until March 24, 2015 . (CR at 156). It was not timely filed. For that reason alone, this jurisdiction of this Court was not invoked. See Olivo v. State , 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (holding that a timely filed notice of appeal is necessary to invoke the jurisdiction of a court of appeals).
V. No amended trial court certification will be sought by counsel : The undersigned attorney has reviewed the clerk’s record of this case and can find no right of appeal for Appellant. No pretrial motions were filed and ruled
up on by the trial court before Appellant entered h is negotiated plea. Nothing in the record suggests that the trial court g ave Appellant permission to appeal. In fact, as6 noted above, Appellant explicitly waived the right of appeal in writing as part of the plea agreement . ( CR at 1 3 ). In short, undersigned counsel can find no reason to
seek an amended certification from the tr ial court that would give Appellant the right of appeal. Moreover, Appellant’s pro se notice of appeal was not timely filed. Therefore, the undersigned cannot prevent this Court from dismissing this attempted appeal

. Undersigned counsel also cannot raise legal claims

— such as an argument that plea counsel rendered ineffective assistance

— on Appellant’s behalf in this attempted direct appeal

. See 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).
VI. Relief available to Appellant: Although the Court of Appeals will dismiss this this appeal , Appellant 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. Appellant may also seek relief by filing an original petition for a writ of certiorari with the Cou rt 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 Appellant on this attempted direct appeal only . He will not represent or assist Appellant with any post

- conviction or original

- proceeding7 challenges to h is conviction and sentence in this cause. Appellant will have to pursue those remedies pro se , or with retained counsel. WHEREFORE, Appellant, by and th rough undersigned counsel, is compelled to concede that Appellant has no right of appeal fro m the underlying criminal case and must also concede that the Honorable Court of Appeals may dismiss th is appeal for that reason

. Respectfully submitted, /s/ Richard B. Dulany, Jr.

____________________________ _____ RICHARD B. DULANY, JR. Texas Bar No. 06196400 Assistant Public 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 Elizondo Tower, 101 W. Nueva St.,8 Suite 71 0 , San Antonio, Texas 782 0 5, on April 15 , 2015

. The total word count is 1, 6 0 0 , not including the appendix

. /s/ Richard B. Dulany, Jr.

_________________________________ RICHARD B. DULANY, JR.9 Appendix: Trial Court’s Certificatio n of Defendant’s Right of Appeal