Kelvin Louis Weathers v. State

• Court: Court of Appeals of Texas
• Decided: April 15, 2014
• Docket: 01-13-00878-CR
• Status: Published

Opinion

Opinion issued April 15, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00878-CR ——————————— KELVIN LOUIS WEATHERS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 10-DCR-055949

MEMORANDUM OPINION

On June 13, 2013, a jury found appellant, Kelvin Louis Weathers, guilty of

the state-jail felony offense of evading detention with a motor vehicle.1 Prior to

the punishment phase of trial, appellant withdrew his plea of not guilty and entered

1 See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B) (West Supp. 2013). a guilty plea in exchange for a plea-bargain agreement from the State. As part of

the plea paperwork, appellant signed a document styled “Defendant’s Waiver of

Right to Appeal,” which states: “I voluntarily waive . . . any right to appeal that I

may have in this cause of action.” Further, during the plea hearing, the trial court

asked appellant whether he was “now waiving [his] right to appeal,” to which

appellant responded “yes.” At the conclusion of the plea hearing, the trial court

entered judgment pursuant to the plea bargain agreement and executed a

certification of appellant’s right to appeal stating that appellant waived the right to

appeal. Nevertheless, on October 3, 2013, appellant filed a pro se notice of

appeal.2

A notice of appeal that complies with the requirements of Rule 26 is

essential to vest this court with jurisdiction. See Slaton v. State, 981 S.W.2d 208,

210 (Tex. Crim. App. 1998). The Court of Criminal Appeals has expressly held

that without a timely filed notice of appeal we cannot exercise jurisdiction over an

appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also

Slaton, 981 S.W.2d at 210. Here, appellant timely filed a motion for new trial on

July 11, 2013, making his notice of appeal due on or before September 11, 2013.

See TEX. R. APP. P. 26.2(a)(1), (2). Therefore, appellant’s October 3, 2013 notice

2 Appellant filed an “Appellant’s Brief” on October 3, 2013. Because the document states that he “appeals his conviction”, we construe the document as a notice of appeal. See TEX. R. APP. P. 25.2(c)(2). 2 of appeal was untimely,3 and we have no basis for jurisdiction over this appeal.

See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.

Further, 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. TEX. R.

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

trial court’s June 13, 2013 certification, which is included in the record on appeal,

states that appellant waived the right of appeal. See TEX. R. APP. P. 25.2(a). 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).

When a defendant waives the right to appeal knowing the consequences of

his waiver, 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); Ex parte

3 The record contains no envelope or postmark date for appellant’s notice of appeal, which contains no certificate of service and is not dated. See TEX. R. APP. P. 9.2(b), 26.2(a); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Appellant does, however, state in a later filing that his “Appellant’s Brief” was “submitted on October 3, 2013,” which was after the filing deadline, thereby making the “mailbox rule” inapplicable to appellant’s notice of appeal. See TEX. R. APP. P. 9.2(b)(1)(C) (requiring notice of appeal be deposited in mail on or before last day for filing); Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010) (holding that pleadings of pro se inmates are deemed filed at time they are delivered to prison authorities). Further, appellant’s notice of appeal was not received in the trial court or in this Court by September 23, 2013, as required for application of the mailbox rule. See TEX. R. APP. P. 9.2(b)(1) (requiring document be received within 10 days after filing deadline to be considered timely); Taylor v. State, No. PD-0180-13, 2014 WL 440990, at *1 (Tex. Crim. App. Feb. 5, 2014). 3 Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006). Here, appellant had

entered into a plea bargain agreement with the State before executing the “Waiver

of Right to Appeal” and before waiving the right to appeal at the plea hearing.

Therefore, appellant knew the consequences of waiving his right to appeal. See

TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (West Supp. 2013) (granting

defendant right to withdraw plea if trial court rejects plea bargain agreement); Ex

Parte Delaney, 207 S.W.3d at 799 (“One way to indicate that the waiver was

knowing and intelligent is for the actual punishment or maximum punishment to

have been determined by a plea agreement when the waiver was made.”); Blanco

v. State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000) (holding that defendant

who waived right to appeal in exchange for sentencing recommendation from State

knew consequences of plea and that appellant’s waiver was valid); Sims v. State,

326 S.W.3d 707, 710 (Tex. App.—Texarkana 2010, no pet.) (“Thus, post-

sentencing waivers of the right to appeal are valid, as are waivers when plea

agreements have been entered.”); Iles v. State, 127 SW.3d 347, 348–50 (Tex.

App.—Houston [1st Dist.] 2004, no pet.) (holding that waiver of right to appeal

made in conjunction with plea agreement was valid). We conclude that both

appellant’s oral and written waivers of the right to appeal were made voluntarily,

knowingly, and intelligently.

4 Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all

pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).