David Devan Trevino v. State
04-15-00592-CR
| Tex. App. | Nov 2, 2015Background
- Appellant David Devin Trevino was indicted for state jail felony theft (2015CR4750) alleged April 2, 2014 in Bexar County.
- On August 31, 2015 Trevino pleaded nolo contendere pursuant to a written plea agreement that included an explicit written waiver of appeal.
- On September 3, 2015 the trial court sentenced Trevino to 2 years confinement (suspended with 4‑year probation), a $1,500 fine, and $8,158.54 restitution; the court certified this as a plea‑bargain case and that the appellant has "NO right of appeal."
- Trevino’s counsel filed a timely notice of appeal (Sept. 21, 2015) and a timely motion for new trial (Oct. 5, 2015) raising complaints about the restitution/sentencing hearing and limitations on cross‑examination, allocution, and due process.
- The plea agreement provided restitution "to be determined by the Court through Community Supervision office;" restitution was in fact determined before sentencing.
- Appellant concedes the Court of Appeals must dismiss the direct appeal because the record includes a certification that he has no right to appeal, and argues his available remedies are the motion for new trial and, if necessary after mandate, an Art. 11.072 habeas application.
Issues
| Issue | Trevino's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Trevino has a right to a direct appeal despite plea‑bargain waiver | Waiver notwithstanding, challenges to restitution/sentencing errors warrant review; motion for new trial filed | Plea agreement includes a valid written waiver; certification shows "NO right of appeal" so appeal must be dismissed | Appeal must be dismissed for lack of right to appeal under plea‑bargain certification |
| Whether restitution determination made before sentencing affects appealability of plea terms | Restitution was determined pre‑sentence and issues arose at the restitution hearing; relief should be available | Pre‑sentence restitution hearing shows the plea bargain was not appealable on that ground | Pre‑sentence restitution hearing supports that the plea bargain is not appealable |
| Whether a timely motion for new trial preserves review despite appeal waiver | Motion for new trial is a proper post‑conviction procedural vehicle and is not waived by an express waiver of appeal | Waiver of appeal is valid, but does not waive right to file a motion for new trial | Motion for new trial remains available and is the proper remedial path rather than direct appeal |
| Availability of other remedies if motion for new trial fails | If motion for new trial fails, may pursue habeas under art. 11.072 after mandate | Same — habeas is appropriate post‑mandate | Appellant may seek relief via Art. 11.072 habeas application after mandate if new trial relief is not obtained |
Key Cases Cited
- Chavez v. State, 183 S.W.3d 675 (Tex. Crim. App. 2006) (when defendant has no right to appeal after plea bargain, dismissal of appeal is required)
- Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003) (a valid waiver of appeal prevents appeal without trial court consent)
- Lundgren v. State, 434 S.W.3d 594 (Tex. Crim. App. 2014) (valid express waiver of appeal does not waive the right to file a motion for new trial)
- Buck v. State, 45 S.W.3d 275 (Tex. App. — Houston [1st Dist.] 2001) (waiver of appeal made contemporaneously with plea and before sentencing is binding)