Humberto Clemente Gutierrez v. State

• Court: Court of Appeals of Texas
• Decided: October 28, 2014
• Docket: 07-14-00377-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

Nos. 07-14-00376-CR 07-14-00377-CR

HUMBERTO CLEMENTE GUTIERREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court, Potter County, Texas; Trial Court Nos. 69,279-A, 69,437-A, Honorable Dan L. Schaap, Presiding

October 28, 2014

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Humberto Clemente Gutierrez, seeks to appeal plea bargained orders

of deferred adjudication for the offenses of unauthorized use of a motor vehicle,1 and

possession of a controlled substance.2 According to the terms of the plea bargain,

appellant was sentenced to community supervision for five years for the unauthorized

use of a motor vehicle charge, and for six years for the possession charge. Further, but

1 See TEX. PENAL CODE ANN. § 31.07 (West 2011). 2 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010). still in accordance with the plea bargain agreement, appellant was assessed a $1,000

fine, and $180 in restitution relating to the possession charge. 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

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. Merely filing a notice of

appeal is insufficient to overcome the prior waiver of appeal. Perez v. State, 885

S.W.2d 568, 570 (Tex. App.—El Paso 1994, no pet).

Appellant’s plea negotiations with the State produced agreements by which he

specifically relinquished his ability to appeal from the trial court's judgments in

consideration for the State's recommendation that he be sentenced as he was. These

agreements are evidenced by documents entitled "Defendant's Waiver of Appeal after

Sentence Has Been Imposed in Accordance with a Plea Bargain Agreement and

Waiver of Appeal Pursuant to the Plea Bargain Agreement." By his signature, appellant

acknowledged that he "voluntarily, knowingly, and intelligently [gave] up or waive my

right to appeal" after "being fully aware of the sentence imposed and of any errors that

2 might have occurred in this cause, and after having been fully informed by the Court of

the right to appeal." The State recommended the sentences reflected by the plea

bargain agreements, and the judgments reflect that these recommendations were

accepted by the trial court.

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

Appeal” that these were “plea-bargain case[s], and the defendant has NO right of

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

review of the 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. Nothing in the record indicates that appellant obtained the trial

court’s permission to appeal.

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.

Per Curiam

Do not publish.