Taiwan Ladell Chance v. State

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) TAIWAN LADELL CHANCE, ) No. 08-02-00425-CR ) Appellant, ) Appeal from ) v. ) 363rd District Court ) THE STATE OF TEXAS, ) of Dallas County, Texas ) Appellee. ) (TC# F-0055399-MW) MEMORANDUM OPINION Taiwan Ladell Chance appeals from his conviction of aggravated sexual assault of a child. Following a finding of guilt by the jury, Appellant entered into a negotiated plea agreement with the State. Pursuant to that agreement, the trial court assessed Appellant's punishment at imprisonment for a term of eight years. Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We dismiss the appeal for want of jurisdiction because Appellant validly waived his right to appeal and the trial court has not given him permission to appeal. FACTUAL SUMMARY Prior to trial, Appellant made a written election that the jury assess punishment and he entered a plea of not guilty before the jury. After the jury found that Appellant intentionally and knowingly sexually assaulted the complainant, Appellant, with the State's agreement, withdrew his punishment election and requested that the court assess punishment. Appellant also entered into an agreement with the State regarding punishment. In exchange for Appellant giving up his right to appeal, the State agreed to recommend that the trial court assess punishment at imprisonment for eight years. The trial court sentenced Appellant in accordance with that recommendation. Despite his waiver of appeal, Appellant subsequently filed a notice of appeal. LEGAL AND FACTUAL SUFFICIENCY In his sole point of error, Appellant contends that the evidence is legally and factually insufficient to show that he intentionally or knowingly sexually assaulted the complainant. The State responds that we lack jurisdiction to review these contentions because Appellant validly waived his right to appeal. We agree. It is well established that a criminal defendant may waive any of the rights secured him by law, including the right to appeal. Tex .Code Crim.Proc.Ann. art. 1.14(a)(Vernon Supp. 2003); Perez v. State, 885 S.W.2d 568, 570 (Tex.App.--El Paso 1994, no pet.). A valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court. Monreal v. State, 99 S.W3d 615 (Tex.Crim.App. 2003); see Ex parte Tabor, 565 S.W.2d 945, 946 (Tex.Crim.App. 1978); Smith v. State, 858 S.W.2d 609, 611 (Tex.App.--Amarillo 1993, pet. ref'd). When a defendant has bargained for a sentencing recommendation from the prosecution in exchange for waiving his right to appeal, as in the instant case, there is no valid or compelling reason why he should not be held to his bargain. Blanco v. State, 18 S.W.3d 218, 219 (Tex.Crim.App. 2000). 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. Tabor, 565 S.W.2d at 946; Perez, 885 S.W.2d at 570. Merely filing a notice of appeal is not sufficient to overcome the prior waiver of appeal. Tabor, 565 S.W.2d at 946; Perez, 885 S.W.2d at 570. Our review of the record shows that Appellant knowingly and voluntarily waived his right to appeal in exchange for the prosecutor's punishment recommendation. Significantly, Appellant has not disavowed his waiver of appeal and the trial court has not granted permission to appeal. Appellant was "fully aware of the likely consequences" when he waived his right to appeal, and it is "not unfair to expect him to live with those consequences now." Blanco, 18 S.W.3d at 220, quoting Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 2547-48, 81 L.Ed.2d 437 (1984). Because Appellant validly waived the right to appeal and he has not appealed with the permission of the trial court, we have no authority to review any points of error he has raised on appeal. See Tabor, 565 S.W.2d at 946; Perez, 885 S.W.2d at 571; Smith, 858 S.W.2d at 613. Accordingly, this appeal is dismissed for want of jurisdiction. July 24, 2003 /s/ Ann Crawford McClure ANN CRAWFORD McCLURE, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. (Do Not Publish)