Dwain Hewitt v. the State of Texas

Opinion

Opinion issued September 28, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00727-CR NO. 01-22-00728-CR ——————————— DWAIN HEWITT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court Harris County, Texas Trial Court Case Nos. 1673506 & 1763161

MEMORANDUM OPINION

Appellant Dwain Hewitt appeals from the judgments in trial court cause

numbers 1673506 and 1763161 convicting him of felony possession of a weapon and theft of property.1 The trial court found Hewitt guilty and sentenced him to 15

and 25 years in jail with the sentences to run concurrently. Hewitt filed a notice of

appeal in each cause. We dismiss the appeals.

Discussion

A defendant may waive his right to appeal in all but capital cases. See Carson

v. State, 559 S.W.3d 489, 492–93 (Tex. Crim. App. 2018). As part of his guilty plea

in both trial court cause numbers, Hewitt signed a “Waiver of Constitutional Rights,

Agreement to Stipulate, and Judicial Confession” in which he waived the right to

appeal, stating:

I understand the prosecutor’s punishment recommendation is 20 years TDC.

I do not accept this recommendation as a plea bargain. Instead, I intend to enter a plea of guilty without an agreed recommendation of punishment from the prosecutor and request that my punishment should be set by the judge. I waive any further time to prepare for trial to which I or my attorney may be entitled. Further, in exchange for the state giving up their right to trial, I agree to waive any right of appeal which I may have.

By agreeing to waive its right to a jury trial, the State gave consideration for

Hewitt’s waiver of his right of appeal. See id. at 494. The trial court’s certification

of defendant’s right of appeal is included in the appellate record. See TEX. R. APP.

P. 25.2(d). The trial court’s certification clearly states that Hewitt waived his right

1 See TEX. PENAL CODE §§ 31.03, 46.04.

2 of appeal. The record thus supports the trial court’s certification.2 See Dears v. State,

154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

Because Hewitt has no right of appeal as a matter of law, we must dismiss

Hewitt’s appeal of the judgments in trial court cause numbers 1673506 and 1763161

for lack of jurisdiction. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.

2006); see also TEX. R. APP. P. 43.2(f). We dismiss any pending motions as moot.

PER CURIAM Panel consists of Chief Justice Adams and Justices Hightower and Countiss.

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

2 Further, after this Court abated the appeal to correct previously-filed conflicting certifications of defendant’s right to appeal, appellant stated on the record that he wished to waive his right of appeal in both causes. 3