Abel Ramirez v. the State of Texas

Opinion

Opinion issued November 16, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00087-CR ——————————— ABEL RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1558533

MEMORANDUM OPINION

Appellant, Abel Ramirez, seeks to appeal the judgment convicting him of the

offense of sexual assault of a child and sentencing him to twelve years’ confinement.

We dismiss the appeal for want of jurisdiction. Background

Ramirez pleaded guilty to the second-degree felony offense of sexual assault

of a child. See TEX. PENAL CODE § 22.011(a)(2). Ramirez signed a “Waiver of

Constitutional Rights, Agreement to Stipulate, and Judicial Confession” in which he

entered a guilty plea without an agreed punishment recommendation and requested

that the trial court set his punishment. In the document, Ramirez states that “Further,

in exchange for the [S]tate giving up their right to trial, I agree to waive any right of

appeal which I may have.”

The trial court entered a judgment convicting Ramirez of the charged offense

and sentenced Ramirez to twelve years’ imprisonment. The trial court’s certification

of defendant’s right to appeal provides that “The defendant has waived the right of

appeal.” Notwithstanding the certification, Ramirez filed a notice of appeal.

Discussion

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. See TEX. R. APP. P. 25.2(d);

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

certification is included in the record on appeal and states that Ramirez waived his

right of appeal. As discussed below, the record supports the trial court’s certification

that Ramirez waived his right to appeal. See Dears, 154 S.W.3d at 615.

2 A valid waiver of appeal—one made voluntarily, knowingly, and

intelligently—prevents a defendant from appealing without the trial court’s consent.

See Carson v. State, 559 S.W.3d 489, 492–93 (Tex. Crim. App. 2018); Ex parte

Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009); see also TEX. CODE CRIM.

PROC. art. 1.14(a) (“The defendant in a criminal prosecution for any offense may

waive any rights secured him by law . . . .”). “[A] defendant may knowingly and

intelligently waive his entire appeal as a part of a plea, even when sentencing is not

agreed upon, where consideration is given by the State for that waiver.” Ex parte

Broadway, 301 S.W.3d at 699; see Jones v. State, 488 S.W.3d 801, 807 (Tex. Crim.

App. 2016) (concluding that defendant waived right to appeal in exchange for State’s

abandonment of enhancement pursuant to plea agreement without agreement as to

punishment).

The “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial

Confession” signed by Ramirez states that “in exchange for the [S]tate giving up

their right to trial, I agree to waive any right of appeal which I may have.” More

precisely, Ramirez waived his right to appeal in exchange for the State’s consenting

to Ramirez’s waiver of his right to jury trial. See TEX. CODE CRIM. PROC. art.

1.13(a) (“The defendant in a criminal prosecution for any offense other than a capital

felony case in which the [S]tate notifies the court and the defendant that it will seek

the death penalty shall have the right, upon entering a plea, to waive the right of trial

3 by jury, conditioned, however, that, except as provided by [a]rticle 27.19, the waiver

must be made in person by the defendant in writing in open court with

the consent and approval of the court, and the attorney representing the [S]tate.”

(emphasis added)). By providing the required consent for Ramirez to waive his right

to a jury trial, the State gave consideration for Ramirez’s waiver of his right to

appeal. See Carson, 559 S.W.3d at 492–96; Ex parte Broadway, 301 S.W.3d at 696–

99. Because the trial court’s certification that Ramirez waived his right of appeal is

supported by the record and the trial court has not given permission to appeal,

Ramirez has no right of appeal. Dears, 154 S.W.3d at 613.

Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.

P. 43.2(f). Any pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Goodman, Rivas-Molloy, and Farris

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