Ezra Carter v. State

Opinion

Opinion issued December 3, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00838-CR ——————————— EZRA CARTER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 1576111

MEMORANDUM OPINION

Appellant, Ezra Carter, pleaded guilty to the first-degree felony offense of

aggravated assault with a deadly weapon, causing serious bodily injury to a family member.1 The trial court found appellant guilty and assessed his punishment at

twenty-five years’ imprisonment. The trial court’s certification of appellant’s right

of appeal reflects that appellant waived his right to appeal. Appellant filed a notice

of appeal and, notwithstanding the certification, was appointed counsel on appeal.

Appellant’s appointed counsel subsequently filed a motion to withdraw, along with

an Anders brief stating that (1) appellant expressly waived his right to appeal in

exchange for the State’s waiver of its right to a jury trial, and (2) there also are no

non-frivolous issues for appeal. Anders v. California, 386 U.S. (1967). This Court

granted appellant’s pro se motion to access the appellate record and a copy of the

record was sent to appellant. See Kelly v. State, 436 S.W.3d 313, 322 (Tex. Crim.

App. 2014). Appellant did not file a pro se response. We dismiss the appeal for want

of jurisdiction.

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). In this case,

the trial court certified that appellant waived his right of appeal. The trial court's

judgment also states “APPEAL WAIVED. NO PERMISSION TO APPEAL

GRANTED.”

1 See TEX. PENAL CODE § 22.02(b)(1); see also TEX. FAM. CODE §§ 71.0021(a) (dating violence), 71.004(a) (family violence includes dating violence). 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). “[A] defendant may

knowingly and intelligently waive his appeal as part of a plea when consideration is

given by the State, even when sentencing is not agreed upon.” Carson, 559 S.W.3d

at 494; see Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim. App. 2016) (explaining

presentence waivers of right of appeal have been upheld when record showed

defendant received consideration for waiver pursuant to plea agreement); see

also TEX. CODE. CRIM. PROC. art. 1.14 (“The defendant in a criminal prosecution for

any offense may waive any rights secured him by law . . . .”).

In this case, appellant signed a “Waiver of Constitutional Rights, Agreement

to Stipulate, and Judicial Confession” stating that “The State and Defendant have no

agreement as to sentence, but the State agrees to waive its right to a jury trial in

exchange for the defendant’s waiver of appeal.” More precisely, the State consented

to defendant’s waiver of his right to jury trial in exchange for defendant’s waiver of

his right to appeal. 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

state 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 by jury, conditioned,

3 however, that, except as provided by Article 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 state.”) (emphasis added). By providing

the required consent for appellant to waive his right to a jury trial, the State gave

consideration for appellant’s waiver of his right to appeal. See Carson, 559 S.W.3d

at 494–96; Ex parte Broadway, 301 S.W.3d at 697–98. Because the record

demonstrates that he waived his right of appeal, appellant may not appeal his

conviction. See Ex parte Broadway, 301 S.W.3d at 698; Blanco v. State, 18 S.W.3d

218, 220 (Tex. Crim. App. 2000); see, e.g., Miles v. State, No. 01-19-00047-CR,

2019 WL 3293695, at *1 (Tex. App.—Houston [1st Dist.] July 23, 2019, pet. ref’d)

(mem. op., not designated for publication) (dismissing appeal when appellant’s plea

documents showed appellant waived right to appeal in exchange for State’s agreeing

to waiver of jury trial); Macias-Sanchez v. State, No. 14-16-00302-CR, 2017 WL

950129, at *1 (Tex. App.—Houston [14th Dist.] Mar. 9, 2017, no pet.) (mem. op.,

not designated for publication) (same).

Accordingly, we dismiss the appeal for want of jurisdiction. Counsel’s motion

to withdraw and any other pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Keyes, Goodman, and Countiss.

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