Victor Coronado v. State

Opinion

Opinion issued July 21, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00161-CR ——————————— VICTOR CORONADO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1408703

MEMORANDUM OPINION

Appellant, Victor Coronado, without an agreed punishment recommendation

from the State, pleaded guilty to the offense of unauthorized use of a motor vehicle,1 enhanced by a prior felony conviction.2 The trial court found appellant

guilty and assessed his punishment at confinement for three years. 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. 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 waived the right of appeal. See TEX. R. APP. P. 25.2(a)(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). A waiver of appeal

made after sentence is imposed is valid. See id.; Blanco v. State, 18 S.W.3d 218,

219–20 (Tex. Crim. App. 2000); Moreno v. State, 327 S.W.3d 267, 268–69 (Tex.

App.—San Antonio 2010, no pet.).

Here, on February 5, 2014, appellant signed a written “Waiver of

Constitutional Rights, Agreement to Stipulate, and Judicial Confession,” which

reflects that he voluntarily and knowingly entered his plea, waived his right to have

a court reporter record the plea proceedings, and waived his right to appeal. That

1 See TEX. PENAL CODE ANN. § 31.07 (Vernon 2011). 2 See TEX. PENAL CODE ANN. § 12.35(c) (Vernon Supp. 2014) (providing for enhancement of punishment for state jail felony). 2 same day, the trial court signed the judgment of conviction and the certification of

defendant’s right of appeal, which reflects that he waived his right of appeal.

The proceedings and documents from the trial court are entitled to a

“presumption of regularity.” “The presumption of regularity is a judicial construct

that requires a reviewing court, absent evidence of impropriety, to indulge every

presumption in favor of the regularity of the proceedings and documents in the

lower court.” Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) (citing

McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)). Thus, the recitals

in court documents “are binding in the absence of direct proof of their falsity.”

Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984); see Houston v.

State, 201 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

(“[W]e presume recitals in court documents are correct unless the record

affirmatively shows otherwise.”). The certification of defendant’s right of appeal is

a document from the trial court and, therefore, is entitled to a “presumption of

regularity.”

The burden is on the defendant to overcome this presumption. Dusenberry v.

State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d.).

When a defendant waives the right to have a court reporter record a plea hearing

and other proceedings in a cause, he nonetheless has the burden to see that a

sufficient record is presented on appeal to show error. See Montoya v. State, 872

3 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d.). Without a

record, appellant cannot demonstrate that he did not waive his right of appeal in

open court after sentencing. Because we must presume that the trial court’s records

are binding, without proof of their falsity, we must presume that appellant waived

his right of appeal in open court after sentencing and the trial court’s certification

is valid.

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 Justices Jennings, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).