in Re: Dean Patterson

• Court: Court of Appeals of Texas
• Decided: November 30, 2007
• Docket: 06-07-00138-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-07-00138-CV ______________________________

IN RE: DEAN PATTERSON

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Original Mandamus Proceeding

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Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

By way of a petition for writ of mandamus, Dean Patterson asks this Court to order the Honorable Jim D. Lovett, Judge of the Sixth Judicial District Court in Red River County, Texas, to grant Patterson permission to appeal his 2004 conviction for aggravated assault. We deny Patterson's petition.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

According to the limited record excerpts Patterson has supplied, we can discern only that the trial court acted appropriately. According to the judgment in this case, supplied as an appendix to Patterson's petition, Patterson pled guilty October 13, 2004, to the offense of aggravated assault and true to one or more enhancement paragraphs not revealed in the partial record Patterson has supplied. The judgment was entered October 13, 2004; on that same date, Patterson executed a waiver of his right to appeal, and the trial court completed a certification form reading "the defendant has waived the right of appeal."

Where, as here, a judgment reflects a plea agreement and the defendant's affirmative waiver of the right to appeal, it is correct to state that the defendant waived his or her right to appeal. See Tex. R. App. P. 25.2; Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003) (Texas has "long held that a valid waiver of appeal prevents a defendant from appealing without the trial court's consent"). Because Patterson has not demonstrated the trial court's abuse of discretion or violation of any duty imposed by law, he is not entitled to mandamus relief. ⁽¹⁾

Because Patterson has failed to show himself entitled to mandamus relief, we deny his petition.

Josh R. Morriss, III

Chief Justice

Date Submitted: November 29, 2007

Date Decided: November 30, 2007

1. We also note that Patterson is attempting to appeal his conviction more than three years after the trial court entered its judgment. This is obviously well beyond the time to file an appeal. See Tex. R. App. P. 26.2. Even if Patterson could obtain the trial court's consent to allow his appeal, such an appeal would be untimely.