James Henry Mills, Jr. v. State

Opinion issued May 1, 2003 In The Court of Appeals For The First District of Texas ____________ NO. 01-03-00159-CR ____________ JAMES HENRY MILLS, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 913901 MEMORANDUM OPINION On November 18, 2002, appellant pleaded guilty to failure to comply with sex offender registration requirements. The appeal is dismissed. 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 eight years confinement in TDCJ-ID 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 included a signed statement of appellant’s counsel that read, in part: I represent the defendant in this case and I believe that this document was executed by him knowingly and voluntarily and after I fully discussed it and its consequences with him. I believe that he is competent to stand trial. I agree to the prosecutor’s recommendation as to punishment. The document was also signed by the prosecutor and the trial judge. The trial court proceeded to find appellant guilty of failure to comply with sexual registration requirements and, following the plea agreement, assessed punishment at eight years. Despite having waived the right to appeal, appellant filed pro se notice of appeal. There is nothing in the record indicating that the trial court consented to an appeal. We hold the appeal must be dismissed. In Buck v. State, 45 S.W.3d 275, 278 (Tex. App.—Houston [1st Dist.] 2001, no pet.), this Court held that, in a plea-bargained case in which the trial court followed the plea bargain agreement, a pre-sentencing waiver of the right to appeal conditioned on the trial court’s acceptance of the plea bargain agreement was valid and enforceable. See also Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000); Bushnell v. State, 975 S.W.2d 641, 642-44 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); Littleton v. State, 33 S.W.3d 41 (Tex. App.—Texarkana 2000, pet. ref’d). The Court of Criminal Appeals recently issued two opinions concerning waivers of the right to appeal. The court held in Alzarka v. State, 90 S.W.3d 321, 324 (Tex. Crim. App. 2002), that the appellant did not waive his right to appeal by signing a boiler-plate plea form because the record reflected an understanding among the parties that there would be an appeal, and the trial court agreed that appellant would be permitted to appeal. In Monreal v. State, No. 2289-01, slip op. at 13 (Tex. Crim. App. Mar. 12, 2003), the court reaffirmed that a valid waiver of appeal, that is, one that is knowingly, voluntarily, and intelligently made, whether any plea was negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court. In the present case, there is nothing in the record indicating an intent to appeal at the time the waiver was made, or that the trial court consented to an appeal. Appellant’s brief does not challenge the waiver. In a sole point of error, appellant’s counsel argues that trial counsel rendered ineffective assistance. The appellate record consists of only the clerk’s record, and no motion for new trial was filed. Appellant waived under oath any right to appeal as part of his plea bargain agreement if the punishment assessed by the trial court did not exceed the agreement. According to the statement of appellant’s trial counsel included in appellant’s written waiver, appellant executed the waiver of constitutional rights, agreement to stipulate to evidence, and judicial confession only after counsel had fully discussed it and its consequences with him. The trial judge followed the plea bargain agreement in assessing punishment. Conclusion We order the appeal dismissed. Adele Hedges Justice Panel consists of Justices Hedges, Jennings, and Alcala. Do not publish. Tex. R. App. P. 47.2(b).