Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 4:21:01 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 4/9/2015 4:21:01 PM JEFFREY D. KYLE 03-15-00212-CR AUSTIN, TEXAS *1 ACCEPTED [4832939] CLERK CASE NO. 03-15-00212-CR MICHAEL JUDE FJBJF. IN THE COURT OF APPEALS
Appellant
VS. THIRD SUPREME DISTRICT
T HE S T A TE OF TEXAJS
Appellee SITTING IN AUSTIN
M O T I ON TO D I S M I SS F OR W A NT OF J U R I S D I C T I ON
This motion is fik d by the State of Texas, Appellee, and in support would show
as follows:
I.
BACKGROUND
Appellant was Indicted for the offense of Evading Arrest or Detention with a
Motor Vehicle. Appellant insisted on acting Pro Se. The trial court appointed standby
counsel to assist Appelhnt. A jury was selected and evidence presented. After the
jury returned a verdict o Guilty and before evidence was presented in the punishment
phase. Appellant accep ed a plea bargain offer of 3 years incarceration. Appellant
thereon waived his right to trial by jury in writing and signed a judicial confession. A
true copy of the plea pae cet is attached hereto as Attachment I. Appellant also waived
his right to appeal. The trial court filed the Trial Court Certification on Defendant's
Right of Appeal certifying that the case was based on a plea bargain and Appellant has
Page 1 of 3
no right to appeal. A true copy of the Trial Court's Certification on Defendant's Right
of Appeal is attached he eto as Attachment 2. Appellant thereafter filed his Notice of
Appeal Pro Se. Therefore this Court has no jurisdiction to consider the appeal initiated
by Appellant. See Tex. R. App. P. 25.1(a)(2), (d).
PRAYER
WHEREFORE, the State prays the Court grant this motion and dismiss this
cause for Want of Jurisciiction.
Respectftjlly submitted, OFFICE OF DISTRICT ATTORNEY 3 3^ and 424* JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P. O. Box 725 Llano, Texas 78643 Telephone Telecopier
(325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us Assistant District Attorney State Bar No. 03353500 ATTORNEY FOR APPELLEE Page 2 of 3
C E R T I F I C A TE OF C O M P L I A N CE This is to certify that the pertinent portion of this brief contains 217 words
printed in Times New Roman tool. 14 font according to the WordPerfect^^ X6 word count
C E R T I F I C A TE OF S E R V I CE This is to certify
a true copy of the above and foregoing instrument, together tiiat with this proof of servicb hereof, has been forwarded by standard mail on the 10th day
Jude Pirie, hmiate #01982650, Reverend C.A. HoUiday
of April 2015, to Michael Transfer Facility, 295 IF -45 North, Huntsville, TX 77320, Appellant Pro Se and to Mr. iVater, Burnet, TX 78611.
Nathan Kight, 1008 N.
GarfWr^unyarcC^ Assistant District Attorney Page 3 of 3
ATTACHMENT 1
i
CAUSE NO. IN THE DISTRICT COURT OF
THE STATE OF TEXAS BURNET COUNTY, TEXAS
V. 424*'* JUDICIAL DISTRICT FELONY ADMONITIONS TO THE DEFENDANT 1. The range of punispment attached to this offense(s) as enhanced, if any, is (check one): (Capital Felony - death penalty waived) confinement in tfie Institutional Division
Count of the Texas Department of Criminal Justice for life. Offender) confinement in the Institutional Division of the Texas
Count .(Habitual of Criminal Justice for life or a term of not more than 99 years or less Departmen
than 25 years.
Count (First Degree Felony + Repeat Offender) confinement in the Institutional Division
of the Texas Department of Criminal Justice for life or a term of not more than 99 years or less than 15 years; in addition, a fine not to exceed $10,000 may be imposed.
Count ^(First Degree Felony) confinement in the Institutional Division of the Texas
Department of Criminal Justice for life or a term of not more than 99 years or less than 5 year^; in addition, a fine not to exceed $ 10,000 may be imposed.
Count (Second D<!gree Felony) confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of not more than 20 years or less than 2
years; in addition, a fine not to exceed $ 10,000 may be imposed.
Count f /^TMrd Dej»ree Felony) confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of not more than 10 years or less than 2 years; in addition, a fine not to exceed $10,000 may be imposed. If the offense was
committed before 9/1/94, the punishment may include an altotiative confinement of
up to one y(!ar in a community correctional facility. .(State JaU Felony) confinement in state jail for a term of not more than 2 years or
Count less than I SO days; in addition, a fine not to exceed $10,000.00 may be imposed.
Count (12.44 Agriiement) For an offense committed after 8/31/95, if the offense is punished
under Secti3n 12.44(a) of the Texas Penal Code, the range of punishment is not more
than I year in the county jail and/or a fine of $4000.00. (Special piinisiiment range) confinement in
Count
for a term of and/or a fine of
i *6 of the prosecuting attorney, if any, is not binding on the Court. The
2. The recommendation
Court will inquire as to the s in open Court before any existence of a plea agreement and, if any exists, inform the defendant
finding on the plea whether the Court will follow such agreement, Should the Court reject a pi ea agreement, the defendant will be permitted to withdraw the plea of guilty or no contest. If is no plea agreement, the defendant has no right to withdraw the
plea following sentencing. til ere assessed does not exceed the pimishment recommended by the
3. If the punishmeni
prosecuting attorney and agreed to by the defendant and the defense attorney, the trial Court
must give its permission matter in the case, except trial to the defendant before the defendant may pursue an appeal on any
br those matters raised by written motions filed and ruled upon before not a citizen of the United States of America, a plea of guilty or nolo If the defendant is 4. contendere for the offensd(s) charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law. convicted of or placed on deferred adjudication for an offense for
5, If the defendant Hi which a person is subject to sex offender registration, the defendant will be required to meet the of Chapter 62 of the Code of Criminal Procedure, See attached
registration requirements
supplemental sex offendei registration admonition.
6. If the Defendant s placed on deferred adjudication, upon violation of a condition of
community supervision, defendant may be arrested and detained. The defendant is entitled to the a hearing limited to the guilty on the original determination by the judge whether to proceed with an adjudication of
No appeal may be taken fi"om this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of
sentence, granting of conjmunity supervision (probation), and defendant's appeal continue as if
the adjudication of guihy lad not been deferred. The defendant
consequences of the plea. Understands the admonitions given above and is aware of the
> DEF^DANT " / 2 *7 CAUSE NO. IN THE DISTRICT COURT OF
THE STATE OF TEXAS BURNET COUNTY, TEXAS
V,
424*" JUDICIAL DISTRICT FELOm WAIVERS. CONFESSION, AND AGREEMENT
I. McA,c/ , the Defendant herein, make the following waivers as
to each count of the indiqtment or information not waived/abandoned by the State of Texas as
indicated by his initials:
If the Grard Jury has not returned an indictment, I waive the right to be accused
l)y indictment and 1 igree to proceed by way of information. right to service of a copy of the indictment or information and the time
waive the
allowed by law to file motions and pleadings thereon and to prepare for trial. right to a trial, including the right to a trial by jury during the guilt
I waive the
iimocence phase aijd a speedy trial, waive the appearance of and confirontation and cross-examination of the State's
witnesses, the pri\^ilege against self-incrimination (as to guilt and punishment), and the
right against doubl 3 jeopardy. reading of the indictment or information.
I waive the
I waive anq abandon all motions, pleadings and objections made before the entry
of my plea. consent b an oral stipulation of the evidence and testimony and to the
introduction of tesiimony by affidavits, written statements of the witnesses and any other
documentary evidence. I waive my right to file a post-conviction application for writ of habeas corpus
pursuant to Article to any claim I had 11.072 of the Texas Code of Criminal Procedure. This waiver applies
cnowledge of or any claim that I could have discovered by the exercise of due diligence w th the assistance of my attorney. This waiver also applies to any facts,
the legal significance of which I should have been able to comprehend and develop on
the record had I ch!)sen to do so.
wai right to a motion for new trial. waive my
I waive any appeal that I could make or pursue in this cause.
3 *8 A plea agreement exists in this cause as follows (and the State agrees to recommend):
If community supervision (probation) in any form is recommended, I understand that the
Court has the discretion to impose any reasonable condition of supervision, including
confinement in various faciilities, treatment, and restitution without violating the plea agreement,
if any, unless the plea agreement expressly limits or prohibits such a condition. appointed by the Court, I acknowledge that I have the ability to
If my attomey is court-appointed attomey fees assessed, either in fiill or by periodic
reimburse the county for
partial paym«its, upon reluase on community supervision or upon release fi-om incarceration.
J, the Defendant herein, JUDICIALLY CONFESS to committing the olirenfie(s) of
and
exactly as charged in the indictment or information and to any lesser included offenses of
the offense(s) charged in the indictment or information. , the Defendant herein, agree to plead GUILTY to the
I,
above specified offense($), TRUE to all enhancements and special issues, if any, as charged
in the indictment or information. By my signature below, I judicially confess to the above
ofrense(s). the Defendant herein, agree that I have the ability to
I,
pay all fines, fees, and ^s^ as a condition of my probation. stitution
D I ^ F M S J D ^ 'S A t r O R N EY day of J ^ b n W y _, 24 >/s' Sworn and subscribed to before me on the \ { ^^
Clerk of the Court *9 The State consents to and approves the foregoing.
ATTORNEY FOR THE STATE
The Court consents to approves the foregoing waivers and consent to stipulation and
introduction of es^
JUDGE PRESIDING
5 *10 ATTACHMENT 2
CAUSE NO.
THE STATE OF TEXAS IN THE 4 2 4 TH JUDICIAL
VI DISTRICT COURT OF
BURNET COUNTY, TEXAS TRIAL COURT 'fil CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL
I, Judge of tlie trial court, certify this criminal case:
Is not a plea-bargain case, and the defendant has the right to appeal, [or ]
Is a plea-bargain cas<!, , but matters were raised by written motion filed and ruled on before trial
and not withdrawn or waived, and the defendant has the right of appeal, [or]
Is a plea-bargain casit , but the trial court has given permission to appeal and the defendant has
the right of appeal. [( i3r ] , and the defendant has NO right of appeal, [or]
^ ^ ^x Is a plea-bargain case right of appeal.
^ ^ / ^e defendant has wj lived the
The defendant in this styled and numbered case, after consulting with his attorney, waives his
right to file a post-conviction applicatio; [1] for writ of habeas corpus pursuant to Article 11.07 and Article 11.072 of the
Texas Code of Criminal Procedure. Thi^ waiver will apply to any claim the Defendant had knowledge of or any claim the defendant could have exercising due diligence with the assistance of counsel The waiver also iveredby applies to any facts record had he chosi i have been able to comprehend the legal significance of and develop on the
Date Signed I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have be an admonished that my attomey must mail a copy of the court of appeals
judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for
discretionaiy review in the Court of Crir linal Appeals. TEX. R. APP. P. 68 .2 I acknowledge that, if I wish to appeal
this case and if I am entitled to do so, it s my duty to inform my appellate attomey, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that,
because of appellate deadlines, if I fiail tc timely inform my appellate attomey of any change in my address, I may
lose the opportunity tq^le pro se petitio|n |of discretionary t^r^. ^
Defeindant's Coun^el^
Mailing address State Bar of Texas ID Number
Telephone number & Fax number Mailing Address
Telephone number & Fax number '"A defendant in a criminal case has the right of appet 1 under these rules. The trial court shall enter a certificate of the defendant's right to appeal in every case in which it enters a jud^oent of guilt or other ap( lealalrie order, ' , In a plea bargain case- that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment only: (A) those matters that were raised by written m<itioa recommended by the prosecutor and agreed to by the defendant - a defendant may appeal filed and ruled on before trial, or (B) after getting the trial court's permission to appeal." TEXAS RULE OF APPELLATE PROCEDURE as .2 (A)(a)
Texas Rule of Apellate Procedure 25.2 (h)Effective 9j 2 0 09 & TRAP 25.2 (a)(a) Revised 9/30/2011