Walton, Brian Keith v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00131-CR ______________________________ BRIAN KEITH WALTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th Judicial District Court Harris County, Texas Trial Court No. 907932 Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss Concurring Opinion by Justice Grant O P I N I O N Brian Keith Walton was convicted in the 339th Judicial District Court of Harris County, Texas, of the offense of possession of cocaine, less than one ounce. Walton was found guilty of a state jail felony pursuant to a plea agreement and sentenced to seven months' incarceration. Walton was represented by appointed counsel. As part of the plea agreement, he waived his right to have a court reporter present. Although the agreement does not contain an explicit waiver of the right to appeal, there is a stamped notation on the judgment itself that reads, "Appeal waived. No permission to appeal granted." Walton has filed a notice of appeal pro se and requested appointment of counsel for appeal. His notice of appeal, unlike many filed under these circumstances, tracks the language of Tex. R. App. P. 25.2(b)(3) and specifies the appeal is for a jurisdictional defect. We are confronted, however, with the statement in the judgment that Walton waived his right to appeal. There is no appellate record to contradict this statement, and there can be none, because in the written admonishments and waivers that are part of the plea agreement, Walton waived his right to have a reporter present at the plea proceeding. In the absence of evidence to the contrary, we presume the regularity of the trial court's judgment and records. Jones v. State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002). The judgment affirmatively shows this Court that Walton waived his right to appeal. There is nothing in the clerk's record suggesting otherwise, and no reporter's record is available for preparation or filing that could support any contention that he did not waive his right to appeal or that any such waiver was not made knowingly and voluntarily. A criminal defendant may waive many rights, including the right to appeal a conviction. A knowing and intelligent waiver of the right to appeal is binding on the defendant and prevents him from appealing any issue in the cause without the consent of the court. Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000); Ex parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978); Lacy v. State, 56 S.W.3d 287, 288 (Tex. App.-Houston [1st Dist.] 2001, no pet.); Littleton v. State, 33 S.W.3d 41, 43 (Tex. App.-Texarkana 2000, pet. ref'd); Freeman v. State, 913 S.W.2d 714, 717 (Tex. App.-Amarillo 1995, no pet.). The proper disposition of such a case is not a dismissal for want of jurisdiction, because the waiver does not affect our jurisdiction. Rather, it prevents the defendant from bringing the appeal. Thus, we dismiss the case. Cf. Jack v. State, 871 S.W.2d 741, 744 (Tex. Crim. App. 1994). Based on the facts set out above, we order the appeal dismissed. Josh R. Morriss, III Chief Justice CONCURRING OPINION This case is an example of why records should be made of guilty pleas. A complete record of this proceeding would have permitted the appellate court to look at all matters relating to the plea. We have no way of knowing whether the waiver of appeal was discussed with the defendant in open court, whether the stamp was on the judgment at the time the trial court signed it, or any other information about the waiver. Therefore, we are placed in a position of having to presume that everything appearing on the face of the judgment is correct. The dialogue between the court and the defendant is the most important part of the plea process. It enables the judiciary to be assured that the defendant understands his or her rights and that the plea is freely and voluntarily made. In the name of expediting the movement of cases, the courts are creeping toward a "sign-here" system of justice. I would recommend to the Legislature that a record not be allowed to be waived and be required on all guilty pleas. Ben Z. Grant Justice Date Submitted: October 28, 2002 Date Decided: October 29, 2002 Publish t his children after his release from Oak Haven and before he was admitted to the Mississippi facility "for a period of two hours to be agreed upon between Petitioner's and Respondent's attorneys." These provisions demonstrate that further court and attorney actions were contemplated and necessary to fulfill and enforce the terms of the September 22, 2006, conditional release order. On October 5, 2006, Kimberly filed a motion for additional attorney's fees alleging that fees had been incurred due to Michael's request to be released from jail, informal conferences between the attorneys and the judge, and negotiating the release terms. Michael then filed his motion for clarification November 22, 2006. In that motion, Michael requested the court to set a specific date for him to appear in court for its determination of whether he must complete the remainder of his sentence. He further requested that his visitation be restored as set out in the final decree of divorce, and he petitioned for attorney's fees. On December 4, 2006, the trial court entered an order stating Michael was to remain in the Jolimar Center with no furloughs or passes. If he left the premises for purposes other than treatment, he was to report to the Gregg County jail. Further, that order was to remain in effect until January 8, 2007. If Michael was released before that date, he was ordered to appear before the court on the first business day after his release for a determination of whether he had to serve the remainder of his sentence. The controverted order was entered December 21, 2006. After a hearing, the trial court ordered that Michael pay for Kimberly's additional attorney's fees. Michael argues that the trial court had lost jurisdiction to enter such an order. Michael's argument is that, at the time the trial court entered its order for additional attorney's fees, more than thirty days had elapsed since the September 1, 2006, judgment of contempt and, therefore, the court had no authority to act. He cites the general rule on finality of judgments. See Tex. R. Civ. P. 329b(d); see also Tex. R. Civ. P. 306a. Whether a court has subject-matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 409 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). We review the issue de novo. Tex. Dep't of Parks & Wildlife, 133 S.W.3d at 226; Alpert, 178 S.W.3d at 409. We do not agree that the trial court had no authority to act in this instance. Rule 329b, which limits a trial court's plenary power to alter a judgment, does not apply to contempt orders. See Ex parte Anderson, 900 S.W.2d 333, 335 n.1 (Tex. 1995); In re Hammond, 155 S.W.3d 222 (Tex. App.--El Paso 2004, orig. proceeding). A judgment of contempt is not appealable. Contempt, which involves the inherent power of a trial court to enforce its orders, is treated differently than a normal final judgment. Anderson, 900 S.W.2d at 335 n.1. The plenary power constraints of Rule 329b do not apply in this case. See In re Naylor, 120 S.W.3d 498 (Tex. App.--Texarkana 2003, orig. proceeding). As has been demonstrated by the discussion above, this matter was an ongoing controversy filed in the court of continuing jurisdiction. The Legislature has granted the trial court that entered the final divorce decree the authority to enforce its judgment. We find the motion for additional attorney's fees was filed during an ongoing controversy regarding the enforcement of the decree. At the time the trial court entered this order, Michael was in the process of completing his alcohol treatment, in lieu of incarceration. (3) After he completed it, he was to reappear in that court. The final resolution of the contempt order, which was issued for the violation of the divorce decree, was still pending before that court when it entered the order for additional attorney's fees. Having found that the court had the authority to enter such an order, we overrule Michael's point of error and affirm the judgment for additional attorney's fees. Jack Carter Justice Date Submitted: August 8, 2007 Date Decided: October 11, 2007 1. For clarity, we will refer to the parties by their first names. 2. The court retains jurisdiction to enforce child support arrearage until paid. Tex. Fam. Code Ann. § 157.269 (Vernon 2002). No child support arrearage is involved here. 3. The record shows he returned to the Jolimar Center December 3, 2006.