Case Information
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398.32 petition for discretionary review
In the case of criminal reports
CRIGINAL
No. Bevishum Auley Moore 3 US. THE STATE OF TEXAS US. PERFING FOR DISCRETIONARY REVIEW ATURNED FOR PERFICIMEE PRo. 52
IN the case of criminal reports for the same of texts sitting at AUSTIN, TEXAS
PERFING FOR DISCRETIONARY REVIEW CONTENT OF CRIINIAL APPEALS DEC 292014
ABS: A. 2014
FILED IN COURT OF CRIMINAL APPEALS JAN 30222
Abel Acosta, Clerk
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INDEX
List of NUthorities ..... 3 I. STNENENT OF THE CHE ..... 4 II. POCCEWELL HISTORY OF THE CHE ..... 5 III. GROUNDS FOR REVIEL ..... 6 A. FIEST GROUND B. SECONO GROUND C. THIED GROUND D. FURTH GROUND E. FIFTH GROUND IV. REASONS FOR REVIEL ..... 9 A. FIRST GROUND B. SECONO GROUND C. THIED GROUND D. FOURTH GROUND E. FIFTH GROUND V. CONCLUSION AND PENYER ..... 10 VI. CERTIFICATE OF SERVICE ..... 10
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LIST OF AUTMOREITICS
I. CNSES
TILLMAN v. STATE STATE v. WOODARD MEGJEFFE V. STATE EX PARTE MMELES MILES V. STATE MISSOURI V. ME NEELY SCH MERDTE U. CHLIOGINA II. CONSTITUTIN
FEQERAL STATE III STATUTE TEKNS CODE OF CRUMINAL PROCEDURE TEKNS PENAL CODE TEKNS CODE OF CRUMINAL PROCEDURE ART. 44.02 8724.012(6)(3)(B) AR. 1.13,1.14,1.15
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REWYNANN ALLEY NOOREE W. THE COURT OF CERMINGL APPERALS FOR THE STATE OF TEXAS SITING AT THE STATE OF TEXAS J. AUSTIN. TEXAS.
PERITIUN FOR REVIEW TO THE HONORARGE COURT OF CERMINGL APPERALS
I. STATEMENT OF THE CASE
DEPENOME WAS CHINGED BY INDICTMENT IN CASE NUMBER 2012CEN9H3 WITH ONE CAUT OF DRUGH WHILE INDUCTED. 380 OFFENSE OF MORE. THE DEMINGL OFFENSE WAS ALLEED TO HAVE BEEN COMMITED IN BEYER COURT, TEXAS ON OF DIBUT JANUARY 8, 2012.
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II. Pecertural History
On an instrument CHARGING the Defendant with the offense of one count of persons wnue intolkted 300 January 8, 2012 (ce at 10). on July 25, 2014, PERSWANT to a written fler agreement with the state, defendant headed "Nold ContenderE" to the charge and adrnitted that the enHANCEnent ALLENTION WAS TENE. (ce at 57,125.126). The parties ARREED that the state would recommend that Defendant be sentenced to communitY sueruision. (ce at 57) as part of the fler agreement, defendant arered in writing to wnue the event of arperal. (ce at 57) on November 26, 2014, the trial court, the HONDERINE MARIA TERESA Here PRESIDING Before SENTENING the DEffendant LEARNED that the presiding sUdGE HAD SENDED A NOTION to SUPEESS THE PHYSICAL ENIDENCE, as that time DEffendant trial counsel filled a motioD to without defendant's fler agreement (ce at 124). MOTION WAS DEVIED THE DEffendant WAS SENTENEED to 10 YENES COMMUNITY SURREVISION (ce at 125-126). NOTICE OF APPERAL WAS FULED pro-SE By the deffendant SEPTEMBER 24, 2014 (ce at 127) the fovell court of arperals dissinsSED deffendant's arperal November 26, 2014. See TEX. R. APP. P. 25.2(A).
*6 II GROUNDTS FOR REVIEW
A. THE COURT OF APPERL'S INGORRECTUM HELIO THAT THE DEPENDANT HAD NO RIGHT TO APPERL, THE DEPENDANT CONTENDS THAT HE HAS A CONSTITUTIONAL RIGHT TO APPERL, IN WHICH TO WITHDRAW HIS PLEA AND TIME BEFORE SENTENKING.... WHEN THE TRIAL COURT DENTED SALO MOTION TO WITHDRAW HIS PLEA RULE 44.62 OF THE TEXAS CORE OF CRIMINAL PECESURE GIVES THE DEPENDANT HIS RIGHT TO APPERL. DEPENSE CONVER AS GROUNDS TRIAL CONVSEL CITED ANLES V. STATE, NO. 04-11-008T1CER, 2014 WIL 3843756 (TEX. APP. SAN ANDINO ALA 6, 2014) FOR THE PROPOSITION THAT BLOOD DRAW EUDENCE IN THIS CASE WAS OBTAINED IN VIOLATION OF DEPENDANTS FOURM ANENDMENT RIGHTS, ALSO CANEDD SYSTOPT A NOLO CONTENDERE PLEA. (ER at 122)
B. IN NEOPORNCE WITH ARTICLES 1.13 AND 1.14: PROVIDES HOW EVER THAT IT SHALL BE NECESSARY FOR THE STATE TO INTEGRUCE EUDENCE INTO THE RECORD SHOULD GUULT OF THE DEPENDANT AND SALO EUDENCE SHALL BE RECEPTED BY THE COURT AS A PASIS FOR ITS JUGGEMENT AND IN NO EVENT SHALL A PERSON CURREES AND CONUCTED URGN A PLEA WITHOUT SUFERENT EUDENCE TO SUPPORT THE SAME. UNDER ARTICLE 1.15, A TRIAL COURT IS NOT PERMITED TO PENDER A CONVILTION WITHOUT EUDENCE EXTRALISMING DEPENDANTS GUULT EVEN IF HE ENTERS A PLEA OF GUULTH OF NOLO CONTENDERE.
*7 C. If the evidence was supressed by the tRial yuode Recess the recensioned by wYth HeR sENrTUE (ce at 136). THEN the DefENOAMS SENTREES wOLO CONSTRUtionALY DefECTED, CAN A CLEMENT ILleGALY DUE TO A NOLO CONtRUERRE REA CANNOT RE USED AS ENDEMEE DUT CAUT RE USED AS ENDEWLE. D. THE DEPENDANTS PLEA WAS NOT KWANINGLY ANO WONDTRER. IS A NOLO CONTEWDERE PLEA AN ADMINISTON OF All ELEMENTS OF A FORMAL CERMINAL CHARGE, IT CANNOT BE TENLY WONDTRERY UNLES THE DEPENDANT PasseSSES AN UNDERSTANDING OF THE LAW. A DEPENDANT MUST HAVE SUFFICIENT ANMERWESS OF THE RELEVANT CHEWNSTANCES. IF THE DEPENDANT KWEN OF THE SURRESSION HE WALDINY HAVE ENTERED INTO HIS NOLO CONTEWDERE PLEA, THE SUPPRESSION WALD RENDER HIS PLEA UNKWANING. ANO UNWONTRER. THEREFORE, WITHTERMAN OF HIS NOLO CONTEWORRE PLEA WAS WAPPENDED. E. THE APPLLATE CONTENDS THAT THE TEXAS TRANSITORTATION CODE SECTION 724.012 IS UNAMERLAND'S ANO IS IN CONFLECT WITM U.S.C.A. CONST. AMENO. 43 VERNOUS NWW. TEXAS CONST. ARF. 1.8.9. THE APPLLANT REFUGEON CANNOT TO A BLOOD ORAL, USED AS ENDEWLE IN A CERMINAL INVESTIGATION. THE FOURTH ANEHOMENT MANORIES THAT AN OFFICE IN A DRUNK DRUNK INVESTIGATION CAN RESPONDALL OPTION A WARRANT REFORE HAVAN A BLOOD SAMPLE ORALW WITHOUT SIGNIFICANTLY UNOPERANIAL THE EFFICACY OF THE SERFCH, TEXAS TENSITORTATION
*8 Caste section 724.012 (b)(3)(8), if a suspect Refused to proride a specimen volumtarily that deresting officer HAS crepible information the aspect has previously connected the of DINT. Then the officer "small reaurite the raxim of a specimen of the personis blood..." 8 8724.012 (b)(3)(8).
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IV. RESSEN FOR REVIVEN
A. DEPENDANT WAS DEVIED HIS CONSTRUTUNAM FIGUR TO GUYMOGRM HIS NOLO CONFRUOERE PLEA (CR at 122). R. LACK EUROPELE TO SUPPORT A NOLO CONFRUOERE PLEA (CR at 122). C. EUROPELE WAS SUPPESED RECENAE TRIAL SUOCE MENONIECEDO IT WITH HER SYGNATURE (CR at 136). D. DEPENDANTS PLEA WAS NOT KNOWINGLY AND YOHNTRARY DUE TO HUM NOT PERING WHERE OF SUFfICIENT RELEVANT CHECUNSTANCES. AS FAR AS SUPPESSION (CR at MD) AND (CR at 134). E. TEKOS TRANSPORTATION CODIE 724.012 (b)(3)(8) IS UNPLAFIGUALS AND IS IN CONFLECT WITH THE US.C.A. CONST. AMEWS. 4; VERNAN'S AND. TEKOS CONST. ART. 1.8.9.
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V. CONCLUSION AND PRAVER
WheReEGFre, By REINN of the REWRESHRE ERENTS ABOVE PANTED OUT APPLLANT |PETTIONEE PRAUS THAT HIS PETITION FOR REVIEN BE PECEPRO AND THAT THE OPINION OF THE COURT OF APPENS BE REWRESED AND THAT THIS CASE BE DISMISED OF RENANDED AND HE SO PRAUS.
VI. ORAL REGIMENT
IN EVENT THIS PETITION IS GENDED I WAIVE ORAL
RECENYED IN COURT OF ORGANI JAN 302015 Abel Acosta, Clis
CERTIFICATE OF SEEWLE
I PENJAMIN ALLEY MOORE PETITONER NEVERY CERTIFY THAT A TAE AND CORRECT COPY OF THE FOREGONS, PETITION FOR REVIEN HAS REEN DELIVEREO TO THE PRASELNTING ANDRENLY, BEVER CANEY DISTEUT NEURWELY OFFICE, APPLLATE ONUSION, PHUL ELIZANDO TAKER, IOI W. NUNA ST. SUITE 370, SAW AMTOWIO, TEXAS 78205. ON COPY OF THE PETITION STATE PRASELNTING ANDRENLY LISA C. MENINN, P.O. BOX 13046 , AUSTIN, TEXAS 78211, RY PESLNE CERTIFED MAIL, TO THEIR CORRECT ANDRESE, THIS THE DAM OF December, 2014.
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fourth Court of Appeals
San Antonio, Texas
November 26, 2014 No. 04-14-00679-CR Benjamin Alley MOORE, Appellant v.
The STATE of Texas, Appellee
From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR4943 Honorable Maria Teresa Herr, Judge Presiding
ORDER
In accordance with this court's opinion issued this date, this appeal is DISMISSED. It is so ORDERED on November 26, 2014.
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fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00679-CR
Benjamin Alley MOORE,
Appellant
v.
The STATE of Texas, Appellee
From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR4943 Honorable Maria Teresa Herr, Judge Presiding
PER CURIAM
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Delivered and Filed: November 26, 2014
DISMISSED
The trial court's certification in this appeal states that "this criminal case is a plea-bargain case, and the defendant has NO right of appeal." Rule 25.2(d) of the Texas Rules of Appellate Procedure provides that 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 under these rules." TEX. R. APP. P. 25.2(d). The clerk's record, which was filed electronically, contains a written plea bargain, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant; therefore, the clerk's record supports the trial court's certification that
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defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). In addition, appellant's counsel has filed a letter in which he states that he has reviewed the electronic clerk's record and can find no right of appeal for Appellant; counsel concedes that the trial court's certification stating the defendant has no right of appeal is correct. In light of the record presented, we agree with appellant's counsel that the defendant has no right of appeal; therefore, Rule 25.2(d) requires this court to dismiss this appeal. TEX. R. APP. P. 25.2(d). Accordingly, the appeal is dismissed. See TEX. R. APP. P. 25.2(d).
PER CURIAM
DO NOT PUBLISH