Case Information
*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/7/2015 11:15:32 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-15-00344-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 12/7/2015 11:15:32 AM CHRISTOPHER PRINE CLERK Nos. 14-15-00344-CR & 14-15-00345-CR In the
Court of Appeals For the
Fourteenth District of Texas ♦ At Houston Nos. 1412474 & 1412475 nd In the 262 District Court ♦ Of Harris County, Texas Nayajah Niya Davis Appellant
The State of Texas v. Appellee
♦ State’s Motion to Dismiss Based on Waiver of Right of Appeal ♦
The record in this case shows that the appellant knowingly waived
her right of appeal after the trial on guilt was concluded. She developed
no post-trial record that would support a finding that this waiver was
not knowing, voluntary, and intelligent. Accordingly, this Court should
dismiss these appeals.
Statement of the Case The appellant was charged with two counts of assault of a public
[1]
servant. (1 CR 19; 2 CR 19). She entered a plea of not guilty, but a jury
found her guilty as charged for both offenses. (1 CR 224, 226; 2 CR 196,
199). After the guilty verdict, the appellant entered into an agreement
with the State regarding punishment. (13 RR 4-5). In accord with that
agreement the trial court assessed punishment at concurrent sentences
5 years’ confinement, but suspended the sentences and ordered the
appellant to serve 5 years’ community supervision. (1 CR 226, 228-31; 2
CR 199, 201-204). As part of the agreement, the appellant waived her
right of appeal. (13 RR 8-10, 18, 21; 1 CR 212).
The appellant’s waiver of her right of appeal is binding.
The record in this case is very explicit that the appellant waived
her right to appeal after the trial on guilt had concluded. (13 RR 8-10,
18, 21). The Court of Criminal Appeals has held that where a defendant,
after having been found guilty, waives her right of appeal as part of an
agreement with the State regarding punishment, that waiver is binding.
*3 See Blanco v. State
, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (declining to allow defendant to “renege” on agreement).
There might be circumstances where the interests of justice would
weigh against enforcing such a waiver, but this case involves none of
those. The only matters the appellant raises on appeal relate to matters
of which she was aware prior to waiving her right of appeal. At one point
she references a motion for new trial, but there is no motion for new
trial in either clerk’s record, and the appellant’s brief does not reference
any new evidence adduced as a result of any motion for new trial.
“[An] appeal must be dismissed if a certification that shows the
defendant has the right of appeal has not been made part of the
record .…” T EX . R. A PP . P. 25.2(d). There is no such certification in this
case; one record contains a certification that the appellant waived her
right of appeal, and the other record contains no certification at all,
though it is apparent that the appellant’s waiver would apply to both
causes. (1 CR 212 (certification that appellant has waived her right of
appeal); 13 RR 18 (trial court admonishing appellant that “You've given
up any right that you have to appeal either one of these convictions; you
got that?”; defendant responding: “Yes.”)).
Prayer
The State asks this Court to dismiss this appeal because the
appellant bargained away her right of appeal in return for the State
agreeing to her receiving community supervision instead of time in the
penitentiary. This Court should dismiss this appeal to enforce that
bargain.
Respectfully submitted, C LINTON A. M ORGAN /s/ C.A. Morgan Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 morgan_clinton@dao.hctx.net TBC No. 24071454 *5 Certificate of Service I certify that I have requested that efile.txcourts.gov electronically
serve a copy of this motion to:
J. Paxton Adams
huntsvilleatty@att.net
C LINTON A. M ORGAN /s/ C.A. Morgan Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 morgan_clinton@dao.hctx.net TBC No. 24071454 Date: December 7, 2015
[1] The State will refer to the two clerk’s records in these cases as though they were sequential volumes. Thus the record for cause 141212474 will be 1 CR, and the record for 1412475 will be 2 CR.