Cause No. 04
- 16
- 00 303
- CR STATE OF TEXAS § COURT OF APPEALS § VS. § FOURTH JUDICIAL DISTRICT § MOISES TRUJILLO § SAN ANTONIO, TEXAS

APPELLANT’S RESPONSE TO THE ORDER PROPOSING TO DISMISS FOR WANT OF RIGHT OF APPEAL
TO THE HONORABLE COURT OF APPEALS: COMES NOW, appellant, MOISES TRUJILLO, who, by and through the undersigned counsel, and in reply to the order of this Honorable court of appeals dated May 23 , 2016, would show the Court the following:
I. Procedural history

. The S tate charged appellant by indictment on Ju ne 4 , 2014 with : one [1] count of indecency by exposure with a child younger than seventeen (17) years old [Count III]; and two [2 ] count s of aggravated sexual assault of a child younger than fourteen (14) years old [Counts I & II] , each alleged to have occurred in Bexar County, Texas, on or about March 30, 2007 or May 28, 2008

. Se e (1 CR 5 ) (containing State’s “True Bill of Indictment ” in Cause No. 2014 -CR- 4416 ). 1

1 Indecency by exposure with a child younger than seventeen (17) is a third degree felony. T EX

. P ENAL C ODE §§ 21.11 (a)( 2), (d) (West 20 08 ). P enetrating or contacting the sex ual organ of a child younger than fourteen (14) is a first degree felony . T EX

. P ENAL C ODE § 22.021 (a)(1) (B) (iii),(e) (West 20 07 ). ACCEPTED 04-16-00303-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/1/2016 6:27:12 PM KEITH HOTTLE CLERKThe parties entered into a written plea agre ement under which a ppellant applied for deferred adjudication or community supervision on March 14, 2016 . (1 CR 21, 29). Pursuant to that agreement, appellant pled “ guilty ” to Counts I & III
of the indictment and the State dismissed Count II. See, e.g., (1 CR 25 , 29 ) (containing plea documents entitled : “ Court’s Admonishment and Defendant’s
Waivers and Affidavit of Admonitions ,” “ Plea Bargain ,” and “ Waiver, Consent to Stipulation of Testimony, and Stipulations ”). The written agreement shows the
State wou ld also recommend : (1) “ punishment to be assessed at [ a ] CAP of 2 5
years [in TDC J] ; ” (2) a fifteen

- hundred dollar [ $1,500 ] fine; (3) “ [an] a f f

irmative
f

inding of...[a] 3G offense [ that will render] Defendant not eligible for supervision under CCP 42.12, Sec. 3;” and ( 4 ) “[the] State will make no recom m endation [on]
Defendant’ s deferred adjudication/community supervision application.” (1 CR 29 ) (emphasis added)

. In addition, a section o f the plea bargain page nominated “ Waiver of Appeal ” states , in relevant part , “ as part of my plea bargain agreement in this case,
I knowingly and voluntarily waive my right to appeal...in exchange for the prosecutor’s recommendation, provided that the punishment assessed by the court
does no t exceed our agreement.” (1 CR 29 ). The plea agreement bears the signatures of: (1) appellant; (2) his counsel, Ro bert F. Gebbia ; and (3) Assistant District Attorney, Marissa L. Giovenco . (1 CR 29, 68 ).T he presiding Judge, the Hon. Kevin O’Connell, followed appellant’s plea agreement on April 26, 20 16, sentencing appellant to twenty

- five [ 25 ] years in the Texas Department of Criminal Justice Institutional Division, and a fifteen

- hundred dollar ($1,500) fine. See (1 CR 6 8

- 75 ) (containing “ Judgment (s) of Conviction by
Court

— Waiver of Jury Trial ” )

. That same day, t he trial court also certified that “this criminal case is a plea

- bargain case, and appellant has NO right of appeal.” (1
CR 67 ) (containing “ Trial Court’s Certification of Defendant’s Right of Appeal ” )

. O n May 13, 2016 , three [3] distinct events occurred : (1) a ppellant file d notice of appeal , [ 1 CR 7 6 ]; (2) Robert F. G ebbia successfully moved to withdraw

as counsel of record , [ 1 CR 78]; and (3) the trial court appointed the Bexar County Public Defender’s office to represent appellant for purposes of this attempted appeal. (1 CR 83). Later, o n May 18, 2016, the released Gebbia filed a “ Motion
For Reconsideration or Reduction of Sentence ” i n which he states, “Moises Trujillo would like to request that the sentence be reduced to five (5) years or probation be reconsidered .” (1 CR 84) (emphasis added). T he trial court summarily denied Gebbia’s motion on May 19, 2016.
II. No right of appeal

. A ppellant pleaded guilty or n olo contendere to two [2] of the three [3] the

c ounts alleged against him p ursuant to a w ritten plea agreement with the State

. (1
CR 26 ). As part of the plea agreement, appellant waived his right of appeal inwriti ng. (1 CR 29 ). The trial court certified that: “this criminal case a plea

- bargain case, and the defendant has NO right of appeal.” (1 CR 67 ). 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) (West 2015) . T he undersigned attorney has reviewed documents including the electronic clerk’s record in this case and can find no right of appeal for appellant. See T EX

. R. A PP

. P. 25.2(a)(2) (providing that, in plea

- bargained case
where the sentence did not exceed the agreed

- upon punishment, defendant may only appeal: [ 1 ] matters raised by written motion and ruled upon before trial; or [ 2 ] after getting the trial court’s permission). Notably, in an effort to secure the permission necessary to pursue this appeal, appel late counsel did file and present Judge O’Connell with a “ Motion to Amend Trial Court’s Certification of Defendant’s Right to Appeal

. ” See Exhibit
A . Judge O’Connell denied that motion on May 24 , 2016. See Exhibit B

. Accordingly, because the record conta ins no evidence of any legal rulings secured pretrial, and the trial court has steadfastly denied permission to appeal, this Court has little choice but to dismiss the appeal. See, e.g., Chavez v. State , 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (dismiss ing appeal with no inquiry into even possibly meritorious claims when defendant had no right to appeal due to pleabargain); Monreal v. State , 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (holding valid waiver of appeal will prevent a defendant from appealing without the consent of the trial court); Buck v. State , 45 S.W.3d 275, 277

- 78 (Tex. App.

— Houston [1st Dist.] 2001, no pet.) (ruling waiver of appeal made contemporaneously with plea and before sentencing is binding).
III. Relief Available to Appellant

. Althou gh the c ourt of a ppeals is required to dismiss this appeal, a ppellant may, after the mandate is issued in this case, file an application for a writ of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure to
determine whether his retained attorney provided ineffective assistance of counsel

. Trial counsel’s performance fr om March 14, 2016 through May 18, 2016 arguably
indicates an objectively deficient belief that appellant was eli gible for community supervision from t he trial court

. See, e.g., (1 CR 21) (containing “ Application for Deferred Adjudication or Community Supervision (Non Jury) ,” file stamped same day as appellant’s plea, March 14, 2016); (1 CR 84) (containing trial counsel

“ Motion For Reconsideration or Re duction of Sentence ,” stating, “Moises Trujillo would like to request that the sentence be reduced to five (5) years or probation be
reconsidered ”) (emphasis added). Appellant no doubt relied on trial counsel’s representations when he applied for “ probatio n , ” which could only be granted by a jury in this case , not the judge. See, e.g., State v. Dunbar , 297 S.W.3d 777 (Tex.Crim. App. 2009) (noting if defendant is found guilty of “3g” offense, probation may be granted only by jury, not judge); T EX

. C RIM

. P. C ODE , art. 42.12, § 3g (West 2015). WHEREFORE, appellant, by and through undersigned counsel, is compelled to concede that this Honorable court of appeals must dismiss this direct appeal for the reasons stated above. Respectfully submitted, MICHAEL YOUNG Chief Public Defender
BY: /s/ Dean A. Diachin Dean A. Diachin B EXAR C OUNTY A SST

. P UBLIC D EFENDER Paul Elizondo Tower 101 W. Nueva S t., Suite 370 San Antonio, Texas 78204 Phone: (210) 335

- 0701 Fax: (210) 335

- 0707 Dean.Diachin@bexar.org T.B.N.: 00796464
ATTORNEY FOR APPELLANT.CERTIFICATE OF SERVICE
I do hereby certify that the above and foregoing has been delivered to the Bexar County District Attorney’s Office, San Antonio, Texas 78205 on this 1 st
d ay of June 2016

. /s/ Dean A. Diachin DEAN A. DIACHIN Assistant Public Defender

# Appendix A

Defendant’s Motion to Amend Trial Court’s Certification of Defendant’s Right ot Appeal
Cause No.: 201 4
- CR
- 4416 ; Filed : 05
- 24
- 16.