v.
State
03-17-00876-CR
21666835
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/8/2018 11:25 AM
JEFFREY D. KYLE
CLERK
NO. 03-17-00876-CR
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes the State of Texas, Appellee in the above-styled and -numbered cause, and moves this Honorable Court to dismiss the Appeal related to FRED VEGA III’s trial court cause number CR2017-162, and for good cause would show the following:
I.
Appellant pled guilty to Possession with Intent to Deliver, Tampering with Physical Evidence and Evading Arrest offenses committed on or about August 6, 2016. Judgments at 1, attached. Appellant entered into a signed plea agreement with the State in which he waived his right to appeal from the judgment and sentence. Plea Bargain Agreements at 3, attached. The Court followed the plea agreements, sentencing Appellant to 30- and 20-year sentences years confinement in TDCJ on November 20, 2017. In the trial court’s certification, signed by Appellant and his counsel, the trial court noted the Appellant had no right of appeal. Trial Court’s Certification at 1, attached.
II.
Appellant filed his untimely notice of appeal on December 29, 2017. As agreed to in the plea and stated in the Trial Court’s Certification of Defendant’s Right of Appeal, Appellant has waived the right of appeal and has no right of appeal in this case. See Tex. R. App. P. 25.2(a)(2), (d); see also Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (finding no valid or compelling reason defendant should not be held to his plea bargain waiver of his right to appeal). The appeal should therefore be dismissed.
III.
WHEREFORE, PREMISES CONSIDERED, the State’s counsel respectfully prays that this Honorable Court dismiss FRED VEGA, III’s appeal.
Respectfully submitted, /s/ Joshua D. Presley Joshua D. Presley, SBN: 24088254 [email protected] Comal Criminal District Attorney’s Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Ph: (830) 221-1300 / Fax: (830) 608-2008
CERTIFICATE OF SERVICE
I, Joshua D. Presley, Assistant District Attorney for the State of Texas, Appellee, hereby certify that a true and correct copy of this Motion to Dismiss, along with the following Appendix, has been sent to Appellant FRED VEGA III’s attorney of record in this matter:
C. Wayne Huff [email protected] P.O. Box 2334 Boerne, TX 78006 through efile.txcourts.gov electronic service to the foregoing email address on this, the 8th day of January, 2018.
/s/ Joshua D. Presley Joshua D. Presley
APPENDIX
“A” – Certified Judgments of Conviction “B” – Certified Plea Bargain Agreements “C” – Certified Certificate of Right to Appeal CASE No. CR2017-162 COUNT I INCIDENT No.fi'RN: 9213170882 TRS: A001 THE STATE OF TEXAS § IN THE DISTRICT COURTT § v. § 207Ttt JUDICIAL DISTRICT § FRED VEGA, III § COMAL COUNTY, TEXAS § STATE ID No.: TX-05691865 § JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL Dote Judgment Judge Presiding: HoN. BRUCE BOYER Entered: NOVEMBER 20, 2017 AUorney for Attorney for State: SAMMY MCCRARY Defendant: ANTHONY CANTRELL Offense for which Defendant Convicted:
POSSESSION WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE PG 1 > 1 GRAM< 4 GRAMS Chnrging InstntOIPnt: Statute for Offense: §481.112(c) HEALTH & SAFETY CODE I INDICTMENT §12.42(d) PENAL CODE Date of Offen ~~e:
AUGUST 6 2016
Degree o(Offon...e; Plt>n to Offense: Findings on Deadly Weapon: SECOND DEGREE FELONY ENHANCED TO HABITUAL OFFENDER (30 YEARS TO 99 GUILTY N/A YEARS OR LIFE) Terms of Plea Bamain:
THIRTY (30) YEARS CONFINEMENT IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE AND $180.00 RESTITUTION Plcn to 1" Enhancement Paragraph: TRUE Findings on 1"' Enhancement Paragraph: TRUE Plea hl 2m1 Enhancement Paragraph: TRUE Findings on 2"d Enhancement Paragraph: TRUE Date Sentence Imposed: NOVEMBER 20, 2017 Date Sentence to Commence: NOVEMBER 20, 2017 Punishment and Place of Confinement: THIRTY (30) \'EARS CONFINEMENT IN THE INSTITUTIONAL DIVISION, TDCJ THIS SENTENCI!: SHALL IWN CONCURRENTLY. CJSENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT Pl..i\CED ON COMMUNITY SUPERVISION FOR N/A. Qout1 Cmts: Restitution: Restitution Payable to: 1. _)()<. That the Defendant be sentenced to tJ,~A"'j (~s I years) imprisonment in the ~titutional Division of the Texas Department of Criminal Justice Texas State Jail Facility 2. _ _ _ _That the Defendant be placed on ___ years of regular community supervision. 3. _ _ _ _That Defendant be placed on ___ years of deferred adjudication community supervision 4. _ _ _ _That the Defendant pay a S___ Fine payable as directed ($_ _ _ _ _ probated). 5. _ _ _ _That the Defendant pay $ _ _ _ _ _ _ _ _ Restitution. payable to
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - a s directed. [6]. _ _ _ _,Prosecute only on the lesser included offense of. - - - - - - - - - - - - - - - 7. Take the following unadjudicated offense(s) into consideration pursuant to Texas Penal Code § 12.45 and defendant judiciat:y confesses to each element of the offense.
8 _ _ _ _ That the Defendant participate in ___ Community Service Hours 9 --....,...-- That the Defendant be confined ___ days in County jail as a condiUon of community supervision.
10. That the Defendant's driver's license shall be suspended for a period of two (2) years, that the Defendant shall have an ignition interlock on any vehicle operated during the entire period of community supervision, and that the Defendant shall attend treatment as recommended by the Comal County Adult Community Supervision Department up to and including S.A.F.P.F. [11] , That the Defendant may seek an early termination of the period of community supervis on agreed to in this plea bargain agreement after he/she has served a period or years if he/she has absolutely no violations of the terms and conditions of his/her community supervision and he/ she has paid all fines, restitution. and court costs and has completed all hours of his/her Community Service Hours. ..('Lt/__ D~li:ntlJIII's lnmal~ l 12 _ _ _ _ Other.
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'""'~ !'1~c ) Llf 7 P; ~.l fl,trg~m ·\llrccmcnl ~~ .,.... ~ .o. ~i %~.'!: s ~~ ~-:-(? ~ "~;:::~,.. tt ......,~<$' ..- ·'· 2. · under Texas Code of Cnminal Procedure Article 1 15. I hereby consent and stipulate in writing, in open court, to an oral stipulation of the evidence and testimony or to the introduction of testJmony by affidavits, written statements of witnesses. and any other documentary evidence in support of the judgment of the Court."
3. "I voluntarily enter my plea of GUILTY to said offense, and my plea is not influenced by any considerations of fear or any persuasion or any delusive hope of pardon. In making my plea of guilty I am not relying on any advice, information or agreement not made to the Court at this time "
4. "I have been advised by my attorney that if I am convicted or placed on deferred adjudication for a reportable sex offense under Chapter 62 of the Code of Criminal Procedure I will be required to meet the registration requirements of that Chapter."
5. "I have read this entire document, discussed it fully with my attorney and understand this document completely and I am aware of the consequence of my plea, and am satisfied I have been effectively represented.·
6. "If I am not a citizen of the United States. I have inquired into, understand and accept the immigration consequences of this plea bargain agreement."
7 "If the punishment recommendation is for deferred adjudication or community supervision, I have inquired into, understand and accept the possible ranges of conditions of community supervision, including those conditions that may require my confinement in a fac1lity up to and including S.A.F.P.F."
V. PLEA AGREEMENT AND SENTENCING RECOMMENDATION - In consideration of The Defendant Agrees (indicated by initials in the blank to the left of each applicable item): (' J to plea "Guilty" to and be found guilty of the offense(s) of.
£v"J''J Ar~.sJ.. wJ.._, o. Pa:w~v.t C.ovrdf,,..r {;r .f~~: Sa.rr.c O.(h'"V(' 2. to judicially confess and stipulate as specified in paragraph IV, above;
3 to waive his/her rights as specified in paragraph Ill, above;
4. to, if placed on deferred adjudication or community supervision , particlpate in any and all conditions of community supervision including those conditions that may require my confinement in a facility up to and including S A.F.P.F.;
5. that the fine and community service restitution hours imposed in this cause shall run consecutive to and be cumulated with the fine and community service restitution hours imposed in any other cause, whether before this court or any other court, unless otherwise specified in this plea bargain agreement,
6 that, if I am sentenced to serve a number of days of confinement in the county jail as a condition of community supervision. a day shall consist of a period of 24 hours. Therefore, I shall serve each day of such a term of confinement in periods that are not shorter than 24 hours (For example If I turn myself in to the jail at 10:00 p.m . on Friday, I must remain in jail until10.00 p.m. on Saturday to receive credit for 1 day. If I turn myself in to the jail at 10:00 p.m. on Friday, I must remain in jail until 10:00 p m. on Sunday to receive credit for 2 days.).
{ V 7. XX to plea "True" and Agree to an affirmative finding to enhancement(s) paragraph(s) alleged in the indictment, information, or Notice of Intent to Enhance;
8. to plea ~True" and Agree to an affirmative finding to use of exhi bition of a deadly weapon during the commission of the offense as alleged in the indictment, information, or Not'ce of Intent to Seek a Deadly Weapon Finding;
,.
9. to waive any review set out under Texas Code or Criminal Procedure, Art 42.12, Sec. 20 (a} The parties have fully negotiated the deta1ls of this agreement including the length of the term of community supervision. Therefore, the Defendant shall not ask for, shall not be considered for, and shall not receive an early termination of community supervision unless otherwise specified in this plea bargain agreement 10. to waive the right to seek shock community supervision under Texas Code of Criminal Procedure, Art 42.12, Sec. [6] or Texas Code of Criminal Procedure. Art 42.12, Sec. 15(f). The parties have fully negotiated lhe details of this agreement and have agreed that the Defendant shall not be placed on community supervision. Therefore, the Defendant shall not ask for, shall not be considered for, and shall not receive shock community supervision under Texas Code of Criminal Procedure, Art 42.12, Sec. [6] or Texas Code of Criminal Procedure, Art 42.12, Sec. 15(f) unless otherwise specified in this plea bargain agreement.
11. to agree that I shall not be presumptively entitled to diligent participation credit as established in Texas Code of Criminal Procedure, Article 42 12, Section 15(h). (This provision is only applicable to State Jail Felony offenses.)