Alex Jermaine Johnson v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-08-00012-CR ______________________________ ALEX JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 36251-A Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION After the trial court denied his motion to suppress evidence, Alex Johnson pled guilty to the charge of aggravated assault and submitted the issue of punishment to the trial court. The trial court sentenced Johnson to fifteen years' imprisonment. Johnson now appeals, raising three points of error, but a problem with our jurisdiction prevents us from reaching the merits of those issues. For the reasons stated below, we dismiss this case for want of jurisdiction. The clerk's record in this case shows that, after the trial court had formally sentenced Johnson, he executed a document entitled "Waiver of Motion for New Trial and Right of Appeal." In this waiver, Johnson acknowledged his right to appeal, but affirmatively (and with his trial counsel's permission) waived that right. Johnson further acknowledged this waiver was made "voluntarily, knowingly and intelligently." The trial court did not thereafter grant Johnson permission to appeal. Under Texas law, a defendant in a noncapital case may waive any right secured by Texas law. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon 2005). A defendant may even waive the right to appeal. Dorsey v. State, 84 S.W.3d 8, 10 (Tex. App.--Texarkana 2002, no pet.). A valid waiver of appeal deprives the appellate court of jurisdiction to consider the merits of the appeal. Id. (citing Clayburn v. State, 985 S.W.2d 624, 625 (Tex. App.--Waco 1999, no pet.). "No attack on the waiver of the right to appeal will be entertained in the absence of factual allegations supporting the claim that the waiver was coerced or involuntary." Id. (citing Ex parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978)). On the authority of Willis v. State, 121 S.W.3d 400 (Tex. Crim. App. 2003), Johnson argues that, despite the waiver of appeal, he was granted permission to appeal by the trial court. In Willis, the Texas Court of Criminal Appeals held that an order granting permission to appeal was effective even when the defendant had previously executed a waiver of appeal. Id. at 403. Johnson's argument originates from the several trial court certificates concerning his right of appeal. Judge Harold Entz conducted Johnson's plea hearing, punishment trial, and sentencing. Johnson entered a plea of no contest December 10, 2007. On that same day, Judge Entz, Johnson, and his attorney signed the form "Trial Court's Certification of Defendant's Right of Appeal." The form allows the trial court to check one of the following applicable to the case: ____ is not a plea bargain case, and the defendant has the right of appeal; ____ is a plea bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal; ____ is a plea bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal; ____ is a plea bargain case, and the defendant has NO RIGHT OF APPEAL; ____ the defendant has waived the right of appeal. None of the statements were marked as applicable to this case. The next day, a trial on punishment began and continued until December 14, 2007. At that time, final statements were presented and punishment was imposed. Also on December 14, Johnson executed the waiver of motion for new trial and right of appeal. The waiver states that it was signed after "conviction" and "punishment was imposed." Johnson gave notice of appeal January 14, 2008, and on January 30, 2008, Judge Alvin Khoury signed another certification indicating that the case was not a plea bargain and the defendant had the right of appeal. This certificate was not signed by Johnson or his counsel. On April 3, 2008, Judge Khoury signed a third certification with the same notation as Khoury's previous certificate. The last certification was also signed by Johnson and his attorney. We find the facts here are substantially different from those in Willis. In Willis, it was clear throughout the proceedings the defendant had motions filed and ruled on which would be preserved for appeal. Here, there is no discussion in the record by the attorneys, the judge, or Johnson that Johnson was attempting to preserve issues on appeal. Further, in Willis the defendant signed a waiver in conjunction with the admonishments at the time of his guilty plea; here, a separate document waiving appeal was signed after sentence had been imposed. Finally, in Willis, the trial court specifically granted the defendant permission to appeal ("the trial court expressly and in writing granted permission for appellant to appeal . . . ." ). Id. Here, none of the judicial certifications expressly grant Johnson the right to appeal. At most, Judge Khoury's certificate recognized that the case was not based on a negotiated plea and under the law an appeal was available. See Tex. R. App. P. 25.2(a), (b); Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006). Since Judge Entz's order had marked none of the options shown above, it granted no permission to appeal. Judge Khoury, who did not try the case, certified that it did not involve a negotiated plea and "defendant has the right of appeal," but the order did not grant him permission to appeal. It is one thing to recognize (even if in error) that, under the law, a defendant has the right to appeal, but something altogether different to grant permission for a defendant to appeal. Nothing in the judicial certifications grants Johnson permission to appeal and therefore does not negate or displace Johnson's waiver of appeal. Even after finding the waiver to be operative, Johnson is entitled to a consideration of any factual allegations that the waiver of appeal was involuntary. See Tabor, 565 SW 2d at 946. Johnson asserts the waiver was involuntary only because there is no audio or reporter's record of the process in which he executed the waiver. Experience teaches that waivers are often signed outside the range of hearing by the State, the trial court, and even the court reporter--perhaps at the quiet of counsel table, where the accused and defense counsel may engage in private discussion. Thus, it is typically impossible for such attorney-client discussions to be recorded by the court reporter. Nor is the court reporter required to make a record of such private attorney-client conversations absent specific consent and request by the accused. In Tabor, the Texas Court of Criminal Appeals specifically noted that the habeas applicant had failed to marshal any evidence to support an assertion of coercion or involuntariness in connection with his waiver of the right to appeal. Id. This despite the fact that he had such an opportunity at the hearing before the trial court on his application. Similarly, Johnson did not request a hearing on a motion for new trial, and he has directed our attention to no evidence to support his appellate claim of involuntariness. (1) Absent any formal requirement that an accused and defense counsel make a recording of their discussions about the waiver of appeal, what remains is Johnson's bare assertion of involuntariness. He directs our attention to nothing in the appellate record that would support or suggest involuntariness. Nor have we found any such evidence. Nor does the mere absence of a record of Johnson's discussion with his trial counsel about the process of signing the waiver of his right to appeal inherently demonstrate involuntariness. We, therefore, conclude Johnson's waiver of his right to appeal is valid and binding, and we dismiss this appeal for want of jurisdiction. Jack Carter Justice Date Submitted: September 3, 2008 Date Decided: September 5, 2008 Do Not Publish 1. We acknowledge that Johnson also waived his right to file a motion for new trial, and thereby arguably waived his right to a hearing on such a motion. If the joint waiver of new trial and appeal was truly involuntary, as Johnson now contends on appeal, we see no reason why he would not have filed a motion for new trial and sought a hearing in the trial court on that motion, despite having otherwise waived that right. was able to do so only after the land had been cleared, with permission of the owner, through an open pasture and a gap in the fence, and not with a full-sized vehicle, but only on a four-wheeler. There is no testimony that the fifty-acre Alexander tract has any access, through the Busher or any other adjacent property, to a public road, particularly County Road 329, except through the Tiller-Nevins property, the former Burns tract. Compare Benedictine Sisters v. Ellison, 956 S.W.2d at 632. Thus, the trial court's finding that the second element, that of necessity rather than mere convenience, has been satisfied, and is supported by legally and factually sufficient evidence. However, we find there is no evidence that such necessity existed at the time of the severance of the dominant and servient estates. Thus, the third requirement for an easement by necessity has not been established. Such element must be shown, id., and absent evidence regarding this matter, an easement by necessity may not be imposed. Machala v. Weems, 56 S.W.3d at 756; Heard v. Roos, 885 S.W.2d at 595-96. There is no evidence whatsoever that, on the date of the severance, the tract ultimately acquired by Lake Alexander Properties was a landlocked property, or had no access to a public road. Without such evidence, an easement by necessity cannot be established. Benedictine Sisters v. Ellison, 956 S.W.2d at 632. Thus, the trial court erred in finding that Lake Alexander Properties had established the required elements of an easement by necessity. In issues four through ten, Tiller and Nevins challenge the trial court's finding that Lake Alexander Properties established an easement by prescription. An easement by prescription rests on the claimant's actions under a color of right. A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else's land for ten years. Mack v. Landry, 22 S.W.3d 524, 531 (Tex. App.-Houston [14th Dist.] 2000, no pet.); Stallman v. Newman, 9 S.W.3d 243, 248 (Tex. App.-Houston [14th Dist.] 1999, pet. denied). To establish an easement by prescription, the claimant must show that his use of land was: 1) open and notorious; 2) adverse to the owner's claim of right; 3) exclusive; 4) uninterrupted; and 5) continuous for a period of ten years. Toal v. Smith, 54 S.W.3d at 435. If there is a failure to establish any of these essential elements by a preponderance of the evidence, the claim of easement cannot be maintained. Brooks v. Jones, 578 S.W.2d 669, 674 (Tex. 1979). Burdening another's property with a prescriptive easement is not well-regarded in the law. Toal v. Smith, 54 S.W.3d at 435. The hostile and adverse character of the use is the same as that necessary to establish title by adverse possession. One test to determine whether a claim is hostile is whether the claimant's use, occupancy, and possession of the land is of such a nature and character as to notify the true owner that the claimant is asserting a hostile claim. Mack v. Landry, 22 S.W.3d at 531; Stallman v. Newman, 9 S.W.3d at 248. To determine if there is legally sufficient evidence to support a finding, we consider only the evidence supporting the finding. Alexander testified that he remembered using the roadway in question when he was young; he also testified that he went there when he was young only every couple of years. The road in question is the way that the foresters used. This evidence establishes none of the required elements for a prescriptive easement. It fails to show that Lake Alexander Properties' or its predecessors in title's use was open and notorious, adverse to the claim of right of the then-owner of the Burns Estate tract, exclusive, uninterrupted, or continuous for a ten-year period. Thus, it is legally insufficient to support a finding of easement by prescription. Alexander himself testified that there was oil field activity at that location, with a lot of people going in and out. Nevins stated that the "oil field road" that traversed the Burns Estate tract was their main road of travel across the tract. He testified that Texaco had for a long time used the road for oil field activity and was presently using the road for drilling a new well and pipeline. The Anderson family lived right by the gate, and they used the road continuously. Deer hunters used the road. Adjacent property owners used the road. All of this use was with the knowledge and consent of the true owners of the property. It has long been the law in Texas that, when a landowner and the claimant of an easement both use the same way, the use by the claimant is not exclusive of the owner's use and therefore will not be considered adverse. Brooks v. Jones, 578 S.W.2d at 673; see also Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987). The easement claimant must exclude, or attempt to exclude, all other persons, including the true property owner, from using the roadway. Stallman v. Newman, 9 S.W.3d at 249. Joint continuous use, without a legally adverse or hostile act, is not sufficient. Mack v. Landry, 22 S.W.3d at 532. This same evidence also fails to show that any use by Lake Alexander Properties would be adverse to any claim of right by the property owner. We find there is no evidence to support all of the essential elements necessary to establish an easement by prescription. The trial court also made a finding that Tiller and Nevins recognized and accepted the easement now claimed by Lake Alexander Properties when they acquired title to their land. This finding is based on a clause in the deed of the Tiller-Nevins land executed by Don Long and wife to Robert C. Tiller and wife on August 13, 1992. The clause is a standard exception to warranty that reads as follows: SAVE AND EXCEPT AND SUBJECT TO all easements and rights-of-way of record or which are apparent on the ground which burden the above described tract, with all privileges appurtenant thereto. This clause, as noted, is a standard exception in a warranty, and in no way created any right in Lake Alexander Properties or its predecessors in title, all strangers to the deed. The road running over the Tiller-Nevins land, which Lake Alexander Properties now attempts to claim, was not at the time of the deed, nor is it now, an easement burdening that land, but a portion of the land itself that was being purchased by Tiller in 1992. For the reasons stated, we reverse the judgment and here render judgment that Lake Alexander Properties, Ltd., take nothing. William J. Cornelius* Justice Date Submitted: May 3, 2002 Date Decided: December 23, 2002 Publish *Chief Justice, Retired, Sitting by Assignment