Bolin v. State

Full title: JIMMY LEE BOLIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Aug 18, 2005

No. 01-05-00498-CR (Tex. App. Aug. 18, 2005)

Opinion

No. 01-05-00498-CR

Opinion issued August 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 982498.

Panel consists of Chief Justice RADACK, and Justices JENNINGS, and HANKS.

MEMORANDUM OPINION

PER CURIAM.

On April 19, 2005, appellant pleaded guilty to the offense of burglary of a habitation with intent to commit theft. Appellant signed under oath a written waiver of constitutional rights, agreement to stipulate to evidence, and judicial confession. The document provided, among other things, as follows:

I intend to enter a plea of guilty and the prosecutor will recommend that my punishment should be set at 5 years TDCJ and I agree to that recommendation. . . . Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor.

The document was also signed by appellant's counsel, the prosecutor and the trial court. The trial court proceeded to find appellant guilty of burglary of a habitation with intent to commit theft and, following the plea agreement, assessed punishment at confinement for five years. Despite having waived the right to appeal, appellant filed a pro se notice of appeal. The trial court's certification of appellant's right of appeal states that appellant waived the right of appeal. There is nothing in the record indicating that appellant's waiver of his right to appeal was not voluntarily, knowingly, and intelligently made. There is also nothing indicating that the trial court gave his consent for an appeal. In fact, the contrary is true. The trial court's judgment is stamped, "Appeal waived. No permission to appeal granted." A valid waiver of the right to appeal will prevent a defendant from appealing without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, (Tex.Crim.App. 2003); see also Blanco v. State, 18 S.W.3d 218, 219-20 (Tex.Crim.App. 2000); Buck v. State, 45 S.W.3d 275, 278 (Tex.App.-Houston [1st Dist.] 2001, no pet.); cf. Alzarka v. State, 90 S.W.3d 321, 323-24 (Tex.Crim.App. 2002) (holding the record directly contradicted and rebutted any presumption raised by the form waiver with numerous references to appeal from ruling on pretrial motion and trial court gave consent for appeal). Because the record in this case reflects that appellant's waiver of the right to appeal was valid and that the trial court did not consent to an appeal, we order the appeal dismissed.