Timmie Ray McDuffy v. State

Opinion

Opinion issued May 18, 2017

In The

Court of Appeals

For The

First District of Texas

investigation (“PSI”) hearing.1 In exchange for appellant’s plea, the State abandoned a deadly-weapon enhancement paragraph in the indictment and agreed to recommend a sentencing cap of fifteen years’ confinement. At the PSI hearing, the trial court found appellant guilty and assessed his punishment at five years’ confinement.2 The trial court certified that appellant had waived his right of appeal, but appellant timely filed a pro se notice of appeal.3 See TEX. R. APP. P. 25.2(a)(2), 26.2(a)(1). We dismiss this appeal for want of jurisdiction.

A valid waiver of appeal—one made voluntarily, knowingly, and intelligently—prevents a defendant from appealing without the trial court’s consent. See Ex parte Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009) (citations omitted) (holding that defendant may knowingly and intelligently waive appeal without sentencing agreement when consideration is given by State for waiver); see also Jones v. State, 488 S.W.3d 801, 807 (Tex. Crim. App. 2016) (upholding waiver of right to appeal because defendant received consideration for

1 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8), 481.115(a), (e) (West 2009).

2 See TEX. PENAL CODE ANN. § 12.32(a) (West 2009).

3 Appellant also filed a notice of appeal from the related trial court cause number 1523825, which was assigned to appellate cause number 01-17-00125-CR.

Appellant’s sentence in this case was set to run concurrently to the sentence in trial court cause number 1523825.

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his waiver by State agreeing to abandon one of two enhancement paragraphs, reducing minimum sentence from 25 to 5 years).

Here, the trial court’s certification, included in this Court’s records, states that appellant waived his right of appeal, and the trial court did not give its permission to appeal any matters. See TEX. R. APP. P. 25.2(a)(2), (d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The records confirm that appellant pleaded guilty to the first-degree felony offense of phencyclidine possession, without an agreed punishment recommendation, in exchange for the State’s abandoning the deadly- weapon enhancement paragraph and agreeing to a fifteen-year sentencing cap recommendation. Thus, the records support the trial court’s certification. See Dears, 154 S.W.3d at 615; see also Jones, 488 S.W.3d at 807. Thus, because appellant has validly waived his right of appeal, we must dismiss this appeal without any further action. See Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); see also Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).

Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Justices Higley, Bland, and Brown.

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

Footnotes

1. NO. 01-17-00124-CR ——————————— TIMMIE RAY MCDUFFY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1520651 MEMORANDUM OPINION Appellant, Timmie Ray McDuffy, pleaded guilty to the first-degree felony offense of possession with intent to deliver a controlled substance, namely, phencyclidine, weighing more than four grams and less than 200 grams by aggregate weight, without an agreed punishment recommendation pending a pre-sentence