Aaron Nathaniel Reyes v. State

• Court: Court of Appeals of Texas
• Decided: February 20, 2014
• Docket: 01-13-00841-CR
• Status: Published

Opinion

Opinion issued February 20, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00841-CR ——————————— AARON NATHANIEL REYES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 12-DCR-061788

MEMORANDUM OPINION

Appellant, Aaron Nathaniel Reyes, timely appealed from his conviction for

the felony offense of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03

(West 2011). On October 15, 2013, the trial court clerk filed the clerk’s record, which contains a certification of appellant’s right to appeal indicating that this “is

not a plea-bargain case, and the defendant has the right of appeal.”

On February 4, 2014, however, the trial court clerk filed a supplemental

clerk’s record, containing a certification of appellant’s right of appeal stating that

“the defendant has waived the right of appeal.” This certification is dated February

3, 2014 and is signed by the trial court, appellant, and appellant’s counsel, Larry

McDougal, Sr. The supplemental clerk’s record also contains a “Motion to

Dismiss Appeal,” signed by appellant, requesting that “this Court . . . withdraw

appellant’s notice of appeal and dismiss this appeal, pursuant to Rule 42.2 of the

Texas Rules of Appellate Procedure.”

Further, on February 7, 2014, the court reporter filed a reporter’s record of a

hearing held on February 3, 2014. At the hearing, appellant’s counsel stated that

he had a motion to dismiss, signed by his client, “which will be filed with the First

Court of Appeals.”1 The State then informed the trial court that when the motion

to dismiss was filed with or forwarded to this Court, the State would dismiss two

other pending cases against appellant. Finally, counsel asked appellant if he

understood “that when the Court of Appeals dismisses your appeal, that [the State

is] going to dismiss the other cases against you,” if “that’s what you’re asking the

1 It appears that appellant’s counsel intended to file the motion to dismiss with this Court but ultimately filed it with the trial court, based upon the trial court’s instruction to “[f]ile that with the clerk, and they’ll forward it up there.” 2 Court and everybody to do,” and if it was his request and what he wanted to do, to

which appellant replied, “Yes, sir.”

An appeal must be dismissed if a certification showing that the defendant

has the right of appeal has not been made part of the record. TEX. R. APP. P.

25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The trial

court’s February 3, 2014 certification, which is included in the record on appeal,

states that appellant waived the right of appeal. See TEX. R. APP. P. 25.2(a). A

valid waiver of appeal prevents a defendant from appealing without the trial

court’s consent. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).

A waiver of appeal made after sentence is imposed or in exchange for

consideration from the State is valid. See Ex parte Broadway, 301 S.W.3d 694,

697–99 (Tex. Crim. App. 2009); Blanco v. State, 18 S.W.3d 218, 219–20 (Tex.

Crim. App. 2000); Moreno v. State, 327 S.W.3d 267, 268–69 (Tex. App.—San

Antonio 2010, no pet.); Delatorre v. State, 957 S.W.2d 145, 149 (Tex. App.—

Austin 1997, pet. ref’d). The record shows that appellant waived the right to

appeal after sentence was imposed and in exchange for dismissal by the State of

two cases pending against him.

Because appellant waived his right of appeal after his sentence was imposed

and in exchange for consideration from the State, he has no right of appeal, and we

must dismiss this appeal. See TEX. R. APP. P. 25.2(d); Menefee v. State, 287

3 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009) (“If a new certificate of appeal . . . were

to certify that the appellant waived his right to appeal, then, of course, the court of

appeals could only exercise its appellate jurisdiction to dismiss the appeal under

Rule 25.2(d).”); Dears, 154 S.W.3d at 613 (“The court of appeals must dismiss an

appeal if a certification showing that the defendant has the right to appeal is not

made a part of the appellate record.”).

Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all

pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).