Lawrence Smith v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00430-CR

LAWRENCE SMITH APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

A jury convicted Appellant Lawrence Smith of possessing four or more but

less than 200 grams of cocaine. Appellant elected to have the trial court assess

his punishment, and the trial court sentenced him to twenty-five years’

confinement. The trial court’s certification of defendant’s right of appeal indicates

that Appellant waived his right to appeal. In addition, on September 16, 2010,

1 See Tex. R. App. P. 47.4. the day the trial court imposed Appellant’s sentence, Appellant and his attorney

executed the following:

WAIVER OF APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

I, Lawrence Smith, Defendant in the above entitled and numbered cause, having been convicted of the offense of POCS w/I Del 4-200g and sentenced herein, hereby expressly state as a fact that I have been fully informed by the Judge of this Court and by my attorney, and I know, that I have the legal right of appeal from this conviction to the Court of Appeals of Texas, and also the right to be represented on appeal by an attorney of my own choice, or if I am too poor to pay for such an attorney or the record on appeal, the Court will, without expense to me, provide me with such an attorney and a proper record for such an appeal.

With full understanding of the above, I hereby, in open Court, state that I do not desire to appeal and expressly waive any appeal in this case, and I hereby accept as final the judgment of conviction and the sentence herein and I request that I be allowed to commence serving the same without further delay, and I also, in open Court, expressly waive the filing of a motion for new trial as well as any motion in arrest of judgment.

Following this language, Appellant’s signature appears above the line

marked “DEFENDANT.” Below that, Appellant’s attorney’s signature appears

following the words, “Approved by me as the attorney representing the

defendant, and I am present at the time of the sentencing and of this waiver.”

On October 1, 2010, Appellant filed a pro se notice of appeal. In

forwarding the notice of appeal to this court, the trial court expressly denied

Appellant’s request for permission to appeal. The court of criminal appeals has

held that a valid waiver of appeal will prevent a defendant from appealing without

2 the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim.

App. 2003).

On October 5, 2010, we sent Appellant’s attorney a letter, advising that the

trial court’s certification states that Appellant has waived his right to appeal and

that unless Appellant or any party desiring to continue the appeal filed with us a

response showing grounds for continuing the appeal, the appeal would be

dismissed. To date, we have received no response from Appellant’s attorney.

On October 8 and October 12, 2010, Appellant filed responses pro se. We

have thoroughly examined both responses and hold that they do not show

grounds for continuing the appeal given Appellant’s express waiver of his right of

appeal.

Accordingly, we hold that Appellant has waived his right to appeal, and we

order this appeal dismissed. See id. at 622-23; Tex. R. App. P. 43.2(f).

PER CURIAM

PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: November 24, 2010