Ex Parte Hogan

556 S.W.2d 352, 1977 Tex. Crim. App. LEXIS 1253

• Court: Court of Criminal Appeals of Texas
• Decided: October 12, 1977
• Docket: 54307
• Status: Published

Opinions

OPINION

ODOM, Judge.

This cause was ordered filed and set for submission as a post-conviction habeas corpus application under Article 11.07, V.A.C.C.P.

The convicting court entered an order reciting in part:

“The Petitioner was convicted in this court in Cause No. 238020, hereafter styled the primary case. After sentencing he was addressed by the court and waived orally and in writing his right of appeal. His attorney approved that action.

“The Petitioner now has filed what purports to be a notice of appeal in the primary case. Good cause for filing the notice of appeal is not shown. Permission to withdraw the waiver of appeal is denied. The notice of appeal is ineffective to initiate the appellate process in the primary case.

“Construing the notice of appeal as a post-conviction application for writ of ha-beas corpus in which the Petitioner asserts that his waiver of appeal was not voluntarily entered, the court finds that the Petitioner’s waiver of right to appeal and of ten days in which to give notice of appeal were knowingly, intelligently and voluntarily entered and good cause for filing an out of time appeal has not been shown.”

Although the district court construed the notice of appeal as an assertion that the waiver of appeal¹ was not voluntary, the notice of appeal does not allege facts that, if proven, would show the waiver was coerced or involuntary. Furthermore, there is nothing in the record suggesting involuntariness that would support sua sponte consideration of the issue. For want of an allegation of facts that, if true, would entitle petitioner to relief, the cause is dismissed. To the extent that Ex parte Dickey, Tex.Cr.App., 543 S.W.2d 99, is in conflict with this opinion, it is overruled, and hereafter no attack on a waiver of the right to appeal will be entertained in the absence of factual allegations supporting such a claim.

It is so ordered.

1 . Note Article 44.02, V.A.C.C.P., as amended, Acts 1977, 65th Leg., ch. 351, p. 940, effective August 29, 1977, which now provides:

“Art. 44.02. Defendant may appeal

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo con-tendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.”