Earl Wayne Murphy v. State

• Court: Court of Appeals of Texas
• Decided: May 7, 2014
• Docket: 07-14-00033-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-14-00033-CR

EARL WAYNE MURPHY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 251st District Court Potter County, Texas Trial Court No. 67,564-C, Honorable Ana Estevez, Presiding

May 7, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Earl Wayne Murphy, seeks to appeal his conviction for the offense of

theft,1 and plea bargained sentence of three years’ incarceration in the Texas

Department of Criminal Justice, Institutional Division, and $500 fine. Because appellant

waived his right of appeal, we will dismiss.

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

has the right of appeal has been made part of the record. TEX. R. APP. P. 25.2(d). A 1 See TEX. PENAL CODE ANN. § 31.03(a), (e)(5) (West Supp. 2013). valid waiver of appeal prevents a defendant from appealing without the trial court’s

consent. Monreal v. State, 99 S.W.3d 615, 621 (Tex. Crim. App. 2003).

A defendant in a noncapital case may waive any right secured to him by law,

including the right to appeal. TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (West 2005);

Monreal, 99 S.W.3d at 617. A valid waiver which is voluntarily, knowingly, and

intelligently made will prevent a defendant from appealing a conviction absent

permission from the trial court. Monreal, 99 S.W.3d at 617. No attack on a waiver of

the right to appeal will be entertained in the absence of factual allegations supporting a

claim that the waiver was coerced or involuntary. Ex parte Tabor, 565 S.W.2d 945, 946

(Tex. Crim. App. 1978); Perez v. State, 885 S.W.2d 568, 570 (Tex. App.—El Paso

1994, no pet.). Merely filing a notice of appeal is insufficient to overcome the prior

waiver of appeal. Perez, 885 S.W.2d at 570.

As a condition of the plea bargain between appellant and the State, appellant

was required to waive his right of appeal. In addition to waiving his right of appeal, the

record reflects that the terms of the plea agreement were that the State would waive an

enhancement allegation, appellant would be found guilty of the charged offense, and

would be sentenced to three years’ incarceration and a $500 fine. The judgment

reflects that the trial court accepted this plea bargain. After sentence was imposed,

appellant signed a waiver of his right of appeal.

The trial court noted on the “Trial Court’s Certification of Defendant’s Right of

Appeal” that this was “a plea-bargain case, and the defendant has NO right of appeal,”

and that “the defendant has waived the right of appeal.” Based upon our review of the

2 record, we find that appellant voluntarily, knowingly, and intelligently waived his right of

appeal. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). Thus, he

was required to obtain the trial court’s permission to appeal. Monreal, 99 S.W.3d at

617. While it is evident that appellant took some steps toward obtaining the trial court’s

permission to appeal, nothing in the record indicates that appellant was able to obtain

the trial court’s permission.

Because appellant has no right of appeal, we must dismiss this appeal. See

Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (en banc) (“A court of

appeals, while having jurisdiction to ascertain whether an appellant who plea-bargained

is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without

further action, regardless of the basis for the appeal.”).

Accordingly, we dismiss the appeal for want of jurisdiction. Any pending motions

are dismissed as moot.

Mackey K. Hancock Justice

Do not publish.