Jose Alvaro Sanchez v. State

• Court: Court of Appeals of Texas
• Decided: April 20, 2015
• Docket: 01-14-00358-CR
• Status: Published

Opinion

Opinion issued April 16, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00358-CR ——————————— JOSE ALVARO SANCHEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 1289396

MEMORANDUM OPINION

Appellant, Jose Alvaro Sanchez, pleaded guilty to the offense of aggravated

assault on a family member. 1 The trial court deferred a finding of guilt and placed

1 See TEX. PEN. CODE ANN. § 22.01(b-1) (West Supp. 2014). appellant on community supervision for a period of three years.

Subsequently, the State moved to adjudicate 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 confinement in the

Institutional Division of Texas Department of Criminal Justice for twelve years

and a fine of $200.00. The trial court revoked appellant’s community supervision

and, in accordance with the State’s recommendation, assessed punishment at

confinement for twelve years and a $200.00 fine. Appellant filed a pro se notice of

appeal. We dismiss the appeal.

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. 2 TEX. R. APP. P.

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

court’s certification, which is included in the record on appeal, states that appellant

has no right of appeal. See TEX. R. APP. P. 25.2(a).

2 The certification of appellant’s right of appeal indicates that this “is a plea-bargain case, and the defendant has NO right of appeal.” Because appellant is appealing from his plea of true to a motion to adjudicate his guilt and not from a plea of guilty or nolo contendere to the original charge, appellant could not have entered into a “plea bargain” and the certification is incorrect. See Hargesheimer v. State, 182 S.W.3d 906, 912–13 (Tex. Crim. App. 2006); Gutierrez v. State, 108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003). Nevertheless, because appellant waived his right to appeal in exchange for the State’s recommendation on punishment, the trial court’s certification correctly states that appellant has no right of appeal and we do not need to abate the case to correct the certification. See infra.

2 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,

pleading “true” to the allegations in the State’s motion to adjudicate his guilt. The

document contains an agreement that the State would recommend that appellant be

adjudicated guilty and punishment at confinement for twelve years. The document

also includes 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 [of] true or admission

of guilt.” Appellant separately initialed the waiver of appeal. The trial court found

the allegations true, adjudicated appellant guilty of the underlying offense, and

assessed punishment in accordance with the recommendation.

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 record shows that appellant

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

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

permission to appeal.

Accordingly, we dismiss the appeal for want of jurisdiction. See Menefee v.

State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears, 154 S.W.3d at 613.

We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).