James David Frizzell v. State

MARY'S OPINION HEADING NO. 12-03-00134-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS JAMES DAVID FRIZZELL, § APPEAL FROM THE 114TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Appellant attempts to appeal his conviction and sentence for possession of a controlled substance. Because Appellant waived his right to appeal, we dismiss. A defendant may waive many of his rights including the right to appeal. Riley v. State, 963 S.W.2d 932, 933 (Tex. App.- Austin 1998, pet. ref'd); Smith v. State, 858 S.W.2d 609, 611 (Tex. App.- Amarillo 1993, pet. ref'd); see also Tex. Crim. Proc. Code Ann. art. 1.14(a) (Vernon 2002). A knowing and intelligent waiver of the right to appeal made after sentence is imposed will prevent a defendant from appealing without the consent of the trial court. Ex parte Tabor, 565 S.W.2d 945 (Tex. Crim. App. 1978); Riley 963 S.W.2d at 933. "No attack on a waiver of the right to appeal will be entertained without factual allegations supporting a claim of coercion or involuntariness." Smith, 858 S.W.2d at 609. In the instant case, Appellant entered an open plea of guilty on March 17, 2003, and sentence was imposed on the same date. Following conviction and the imposition of sentence, Appellant filed a "Waiver of Motion for New Trial and Motion in Arrest of Judgment and Waiver of Right to Appeal," which was signed by Appellant and his attorney, and approved in writing by the trial court. In addition, the trial court signed its certification that Appellant had waived the right of appeal. Appellant and his counsel also signed that document. The certification is in the form mandated by the rules of appellate procedure. Tex. R. App. P. 25.2(a)(2), appendix. We find no indication in the record that the trial court subsequently gave Appellant permission to appeal. On May 5, 2003, we notified Appellant that the certification stated that he had waived the right to appeal. We also informed Appellant that the appeal would be dismissed unless he established the jurisdiction of this court on or before May 15, 2003. To date, Appellant has neither established the jurisdiction of this court nor responded to the May 5 notice. Accordingly, this appeal is dismissed. Opinion delivered May 21, 2003. Panel consisted of Worthen, C.J. and Griffith, J. (DO NOT PUBLISH)