Felix Guillory, Jr v. State

Opinion

Opinion issued August 30, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00451-CR ——————————— FELIX GUILLORY, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 163rd District Court Orange County, Texas Trial Court Cause No. B-110668-R

MEMORANDUM OPINION On April 10, 2012, a jury found appellant, Felix Guillory, Jr., guilty of the

state-jail felony offense of possession of a controlled substance1 and, based on his

pleas of true to two prior convictions for felony offenses, the jury assessed his

punishment at 16 years’ imprisonment.2 The trial court entered judgment pursuant

to the jury’s verdict and executed a certification of appellant’s right to appeal

stating that this is not a plea-bargain case and appellant has the right to appeal.

Appellant timely filed a notice of appeal and a motion for new trial on April 19,

2012. The trial court granted the motion for new trial as to the punishment phase

on May 31, 2012. Appellant and the State then entered into a plea agreement for

appellant’s punishment. In the agreement, the State agreed to recommend that

appellant be sentenced to eleven months confinement in a state jail facility, the

parties agreed that appellant had 162 days of credit toward his sentence, and

appellant waived his right to appeal from both the guilt/innocence and punishment

phases of the trial. On July 5, 2012, the trial court sentenced appellant in

accordance with the parties’ agreement and certified that appellant waived the right

to appeal.

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. TEX. R. APP. P.

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010). 2 See TEX. PENAL CODE ANN. § 12.425(b) (West Supp. 2011). 2 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The trial

court’s July 5, 2012 certification, which is included in the record on appeal, states

that appellant waived the right of appeal. See TEX. R. APP. P. 25.2(a). A valid

waiver of appeal prevents a defendant from appealing without the trial court’s

consent. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).

When a defendant waives his right of appeal in exchange for consideration

from the State, his waiver is made knowingly, intelligently, and voluntarily, and he

may not appeal any matters unless the trial court first grants permission. See Ex

parte Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009) (holding that

defendant may knowingly and intelligently waive appeal without sentencing

agreement when consideration is given by State for waiver); Blanco v. State, 18

S.W.3d 218, 219–20 (Tex. Crim. App. 2000). The record shows that appellant

waived the right to appeal in exchange for a sentencing recommendation from the

State and that the trial court did not give its permission to appeal.

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

Dears, 154 S.W.3d at 613; see also Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex.

Crim. App. 2009) (“If a new certificate of appeal . . . were to certify that the

appellant waived his right to appeal, then, of course, the court of appeals could

only exercise its appellate jurisdiction to dismiss the appeal under Rule 25.2(d).”).

3 Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all

pending motions as moot.

PER CURIAM Panel consists of Justices Bland, Massengale, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).