in the Interest of R.S., T.S., R.A.S., M.P., and D.P., Children

• Court: Court of Appeals of Texas
• Decided: October 12, 2005
• Docket: 10-05-00243-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00243-CV

In the Interest of

R.S., T.S., R.A.S., M.P., and D.P., Children

From the 220th District Court

Bosque County, Texas

Trial Court No. 03-12-33003-BCFM

MEMORANDUM  Opinion

Appellants have filed a “Motion to Dismiss Appeal.”  See Tex. R. App. P. 42.1(a)(1).  Appellants have personally signed the motion.

The motion states that Appellants’ counsel conferred with the ad litem and with opposing counsel and that they do not oppose the motion.  Dismissal of this cause would not prevent a party from seeking relief to which it would otherwise be entitled.

Appellants’ motion to dismiss is granted.  The appeal is dismissed.

PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal dismissed

Opinion delivered and filed October 12, 2005

[CV06]

0;                                                                                                                                                                            

O P I N I O N

      A grand jury indicted Jeff D. Tate for the offense of burglary of a habitation. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 30.02(a)(1), (c)(2), 1993 Tex. Gen. Laws 3586, 3633 (amended 1999) (current version at Tex. Penal Code Ann. § 30.02(a)(1), (c)(2) (Vernon Supp. 2000)). Tate pleaded guilty to the lesser-included offense of burglary of a building. See Tex. Pen. Code Ann. § 30.02(c)(1) (Vernon Supp. 2000). Pursuant to the State’s plea recommendation, the court assessed Tate’s punishment at eighteen months’ confinement in a state jail facility. Seven days later, Tate filed a pro-se notice of appeal.

      At the time of sentencing, Tate signed a document waiving his right of appeal. Tate’s counsel also signed the waiver, affirming her belief that Tate “fully understands his right of appeal and desires for valid reasons to waive such right.” A criminal defendant may waive many of his rights, including the right to appeal a conviction. Clayburn v. State, 985 S.W.2d 624, 625 (Tex. App.—Waco 1998, no pet.); Doyle v. State, 888 S.W.2d 514, 517 (Tex. App.—El Paso 1994, pet. ref'd). A knowing and intelligent waiver of the right to appeal is binding on the defendant and prevents him from appealing any issue in the cause without the consent of the court. Ex parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978) (op. on reh’g); Clayburn, 985 S.W.2d at 625.

      The record before us does not indicate that Tate obtained the permission of the trial court to appeal his conviction or that he has disavowed his waiver. See Clayburn, 985 S.W.2d at 625. Accordingly, we conclude that the waiver is valid, and we dismiss the appeal.

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Opinion delivered and filed March 15, 2000

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