James Ortiz v. State

• Court: Court of Appeals of Texas
• Decided: September 10, 2014
• Docket: 07-14-00322-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-14-00322-CR

JAMES ORTIZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 25,132B, Honorable John B. Board, Presiding

September 10, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, James Ortiz, seeks to appeal his conviction for the offense of evading

arrest or detention using a vehicle,1 and plea bargained sentence of twenty years’

incarceration in the Texas Department of Criminal Justice, Institutional Division.

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

1 See TEX. PENAL CODE ANN. § 38.04 (West Supp. 2014). 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. No attack on a waiver of

the right to appeal will be entertained in the absence of factual allegations supporting a

claim that the waiver was coerced or involuntary. Ex parte Tabor, 565 S.W.2d 945, 946

(Tex. Crim. App. 1978); Perez v. State, 885 S.W.2d 568, 570 (Tex. App.—El Paso

1994, no pet.). Merely filing a notice of appeal is insufficient to overcome the prior

waiver of appeal. Perez, 885 S.W.2d at 570.

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

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

consideration for the State's recommendation that he serve a twenty year sentence of

incarceration. This agreement is evidenced by a document entitled "Defendant's

Waiver of Appeal After Sentence or Punishment Has Been Imposed In Accordance with

Plea Agreement and Waiver of Appeal Pursuant to the Plea Bargain Agreement With

the State." By his signature, appellant acknowledged that he "voluntarily, knowingly,

and intelligently waive[ed] my right to appeal" after "being fully aware of the sentence or

punishment imposed and of any errors that might have occurred in this cause, and after

having been fully informed by the Court of the right to appeal." The State recommended

a twenty year sentence, which the judgment reflects was accepted by the trial court.

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

Appeal” that this was “a plea-bargain case, 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.