Gregg Franco v. State

Opinion

Opinion issued June 18, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00339-CR NO. 01-13-00340-CR ——————————— GREGG FRANCO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court Harris County, Texas Trial Court Cause Nos. 1300790, 1305998

MEMORANDUM OPINION

Appellant, Gregg Franco, pleaded guilty to the felony offense of possession

of a controlled substance1 in trial court cause 1300790 and to the state jail felony

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West 2010). offense of possession of a controlled substance2 in cause 1305998 and pleaded true

to the allegations in two state jail felony enhancement paragraphs in cause

1305998.3 The trial court deferred making a finding of guilt in each case, found

the allegations in the enhancements paragraphs true, and placed appellant on

community supervision for a period of five years.

Subsequently, the State moved in each case to revoke appellant’s

supervision and for adjudication of guilt. Appellant pleaded true to the State’s

allegations and executed a waiver of his right to appeal, in exchange for the State’s

recommendation that punishment be assessed at three years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice in cause

1300790 and at eight months’ confinement in the State Jail Division in cause

1305998. The trial court revoked appellant’s community supervision in each case,

adjudicated appellant guilty, and, in accordance with the recommendations of the

State, assessed punishment at confinement for three years in cause 1300790 and for

eight months in cause 1305998. The trial court’s certifications of appellant’s right

of appeal, which are not signed by the trial court, indicate that appellant waived the

right of appeal. Nevertheless, appellant filed a pro se notice of appeal. We dismiss

these appeals.

2 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010). 3 See TEX. PENAL CODE ANN. § 12.425(a) (West Supp. 2012).

2 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.

25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The trial

court’s certifications, which are included in the record on appeal, state that

appellant waived the right of appeal.4 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).

The record reflects that appellant swore to a stipulation of evidence in each

case, pleading “true” to the allegations in the State’s motion to adjudicate

appellant’s guilt. The documents contain agreements that the State would

recommend revocation of appellant’s community supervision, punishment of

confinement for three years in cause 1300790 and for eight months in cause

1305998, and no fine. The documents also include a “Waiver of Appeal,” stating

that, “As part of my agreement with the prosecutor to plead true, I agree to waive

any right to appeal I may have concerning any issue or claim in this case, including

my plea or [sic] true or admission of guilt.” Appellant separately initialed each

waiver of appeal. The trial court found the allegations true, adjudicated appellant

4 Although we may order the trial judge to provide signed certifications, we will not do so when, as here, corrected certifications would not authorize us to exercise jurisdiction over these appeals. See TEX. R. APP. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). 3 guilty of the underlying offenses, and assessed punishment in accordance with the

recommendations.

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 records shows that appellant

waived his right to appeal as partial consideration, along with his plea of true, for

the State’s recommendations on punishment and that the trial court did not give its

permission to appeal.

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

Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears v. State,

154 S.W.3d 610, 613 (Tex. Crim. App. 2005).

Accordingly, we dismiss the appeals for want of jurisdiction. We dismiss

any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

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