No. 04-15-00321-CR

IN THE

FOURTH COURT OF APPEALS OF TEXAS

AT SAN ANTONIO, TEXAS

BRYAN KRYSTOPHER ANDERS, 

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 BRYAN KRYSTOPHER ANDERS, Appellant, by and through 

undersigned counsel, in reply to the ORDER of this Honorable Court dated June 

23, 2015, and shows the Court the following:

I. Procedural history:

 Anders was charged by indictment in cause number 2015CR1954 with one 

count of possession with intent to deliver a controlled substance in penalty group 2,

(MDMA) having an aggregate weight of 4 grams or more but less than 400 grams, 

and one count of possession of a controlled substance in penalty group 2, (MDMA) 

having an aggregate weight of 4 grams or more but less than 400 grams. (CR at 4). 

Both felony offenses were alleged to have been committed in Bexar County, 

ACCEPTED

04-15-00321-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/16/2015 2:24:38 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 07/16/2015 2:24:38 PM KEITH E. HOTTLE Clerk
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Texas, on or about July 2, 2014. Anders was represented by attorney Jamie 

Balagia.

On April 20, 2015, pursuant to a written plea agreement with the State, 

Anders pleaded nolo contendere to both counts alleged in the indictment. The 

parties agreed in writing that the punishment would be assessed at 15 years of 

imprisonment and the State would make no recommendation to the trial court on 

Ander’s application for probation. (CR at 31). As part of the plea agreement, 

Anders agreed in writing to voluntarily waive the right of appeal. (CR at 31) . By 

her signature, the trial court approved Anders’ waiver and voluntary 

relinquishment of his known rights, including his waiver of the right of appeal.

(CR at 35).

On April 28, 2015, the trial court, the Honorable Mary Roman presiding,

followed the terms of the plea agreement and sentenced Anders to 12 years of 

imprisonment in the Institutional Division for each count, with no fine. (CR at 82-

5). The sentences were ordered to be served concurrently with the sentences 

imposed in cause number 2015CR1955. (CR at 82, 84). The trial court accurately 

certified that this is a plea-bargain case and that Anders has “NO right of appeal.”

(CR at 81). By his signature on the certifications, Anders acknowledged that he 

was informed that he has no right of appeal.
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On May 20, 2015, through his trial counsel, Anders filed a motion for new 

trial. Anders argued that he was sentenced without the trial court having the benefit 

of reviewing letters from family members and friends. (CR at 86). Letters from 

quite a number of family members and friends are attached to the motion for new 

trial and were available for the trial court to review. (CR 90-106). Nevertheless, the 

motion for new trial was overruled by the operation of law on July 12, 2015. TEX.

R. APP. P. 21.8.

Despite having waived the right of appeal as part of his plea agreement, 

Anders timely filed a notice of appeal with the District Clerk on May 20, 2015. 

(CR at 107). On July 10, 2015, the trial court appointed the Bexar County Public 

Defender’s Office to represent Anders in his attempted appeal. (Supplemental CR 

at 6). The clerk’s record was filed on June 5, 2015. On June 23, 2015, this Court 

gave written notice that the appeals will be dismissed pursuant to Rule 25.2(d) of 

the Texas Rules of Appellate Procedure unless an amended certification showing 

that Anders has the right to appeal is made part of the appellate record by July 20, 

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 
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certification that he has permission to appeal. See TEX. R. APP. 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.” TEX. R. APP. P. 25.2(d). 

This was a plea-bargain case. As noted above, the clerk’s record shows that 

Anders entered a no-contest plea to the charged offenses pursuant to the terms of a 

written plea agreement with the State. The trial court followed that plea 

agreement––and actually departed below the agreed-upon term of imprisonment––

by sentencing Anders to 12 years of imprisonment with the sentences to run 

concurrently with cause number 2015CR1955. The trial court accurately certified 

that this is a plea-bargain case and that Anders has “NO right of appeal” because 

the plea agreement was followed. Anders, by his signature, acknowledged that he 

was informed that he has no right of appeal. Further, he voluntarily waived the 

right of appeal in writing when he signed the written plea agreement. For these 

reasons, the trial court’s certification of the defendant’s right of appeal accurately 

reflects that this is a plea-bargain case, that the terms of the plea bargain were 

followed, and that Anders has no right of appeal.

III. Waiver:

A defendant may waive the right of appeal, as long as the waiver is made 

“voluntarily, knowingly, and intelligently.” See TEX. CODE CRIM. PROC. art. 1.14 
5

(“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). The record shows that Anders voluntarily waived the right of appeal in 

writing as part of the plea agreement and the trial court approved that waiver. 

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, or that Anders’ written 

waiver of the right of appeal was involuntary. 

Since Anders has validly and voluntarily waived the right of appeal and 

accepted the benefit of his plea bargain, this Court has not acquired jurisdiction 

over the attempted appeals in these cases. 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 never acquired jurisdiction.”). If Anders now wishes to 

argue that he received ineffective assistance from his plea counsel or that his nocontest plea was involuntary, he will have to raise those arguments in a postconviction writ. He cannot make those arguments in this attempted appeal. See

TEX.R.APP.P. 25.2(a)(2).

Nor may Anders appeal from the denial of the motion for new trial or argue 

on appeal that the trial court should have reduced his sentence after being 

presented with the letters from his friends and family. Estrada v. State, 149 S.W.3d 

280, 285 (Tex. App. ––Houston [1st Dist.] 2004, pet. ref’d)(“[T]he denial of a 
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motion for new trial, regardless of the ground or grounds raised in the motion, is 

not appealable in a plea-bargained case without the trial court’s permission.”).

IV. No amended trial court certification will be sought by counsel:

For all of the reasons stated above, the undersigned attorney can find no 

right of appeal for Anders. Nothing in the record suggests that the trial court gave

Anders permission to appeal or that any appealable pretrial motions were filed and 

ruled on. In fact, as noted above, Anders explicitly waived the right of appeal in 

writing as part of the plea agreement. The waiver is enforceable against him. For 

that reason alone, the trial court’s certification that he has no right of appeal is 

accurate. Marsh, 444 S.W.3d at 660.

In short, undersigned counsel can find no reason to seek an amended 

certification from the trial court that would give Anders the right of appeal. The 

certification is accurate in that it comports with the proceedings in the trial court. 

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 —in this attempted 

direct appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 

2006)(where the 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).
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V. Relief available:

Although the Court of Appeals will dismiss this this appeal, Anders may still 

challenge his convictions 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. He may also seek relief by filing an original petition for a writ of 

certiorari with the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN.

art. 4.04 (West 2005), and TEX. CONST. art. V, § 5. However, undersigned counsel 

is appointed to represent Anders on these attempted direct appeals only. He will 

not represent or assist Anders with any post-conviction or original-proceeding 

challenges to his conviction and sentence in these cases. Anders will have to 

pursue those remedies on his own, or with retained counsel, if he so chooses.

WHEREFORE, undersigned counsel, is compelled to concede that Anders

has no right of appeal from the underlying criminal case and must also concede 

that the Honorable Court of Appeals may dismiss this appeal for that reason. No 

amended certification of the defendant’s right of appeal will be sought.

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 78205
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(210) 335-0701

FAX (210) 335-0707

richard.dulany@bexar.org

ATTORNEY FOR APPELLANT

CERTIFICATE 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 Bexar County District 

Attorney’s Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., 

Suite 710, San Antonio, Texas 78205, on July 16, 2015. The total word count is 

1,690, not including the appendix.

/s/ Richard B. Dulany, Jr.

_________________________________

RICHARD B. DULANY, JR.
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Appendix: Trial Court’s Certification of Defendant’s Right of Appeal in cause 

numbers 2015CR1954