Vernon King v. State ( 1998 )

Vernon King v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-97-319-CR

     VERNON KING,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court No. 14,639

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

     According to the clerk’s record, Appellant Vernon King pled guilty to the felony offense of possessing a deadly weapon in a penal institution. See Tex. Pen. Code Ann. § 46.10 (Vernon 1994). King signed a written waiver of appeal at the time of his guilty plea. On November 6, 1997, the trial court sentenced King to three years’ imprisonment pursuant to the State’s plea recommendation. Despite having waived his right to appeal, King filed a pro se notice of appeal on December 3.

      A criminal defendant may waive many of his rights, including the right to appeal a conviction. Hill v. State, 929 S.W.2d 607, 608 (Tex. App.—Waco 1996, no pet.); Doyle v. State, 888 S.W.2d 514, 517 (Tex. App.—El Paso 1994, pet. ref'd); Smith v. State, 858 S.W.2d 609, 611 (Tex. App.—Amarillo 1993, pet. ref'd). 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. Ex parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978); Hill, 929 S.W.2d at 608. A defendant cannot overcome the waiver merely by filing a notice of appeal. Tabor, 565 S.W.2d at 946; Hill, 929 S.W.2d at 608.

      The record before us does not indicate that King obtained the permission of the trial court to appeal his conviction or that he disavowed his waiver. See Hill, 929 S.W.2d at 608. Moreover, King makes no attempt to raise the voluntariness of his waiver. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996). Because we conclude that the waiver is valid and binding, King is prevented from bringing this appeal. Accordingly, we dismiss the appeal.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Chief Justice McDonald (retired)

Appeal dismissed

Opinion issued and filed January 28, 1998

Do not publish

[1]   Justice Reyna is the designated author under our Internal Administrative Rules.   Chief Justice Gray’s opinion is a concurring opinion.

[2]               “’[D]isposition is a euphemism for sentencing [ ] and is used to honor the non-criminal character of the proceedings.’”  In re K.T., 107 S.W.3d 65, 67 (Tex. App.—San Antonio 2003, no pet.) (quoting In re C.S., 804 A.2d 307, 309 n.2 (D.C. App. 2002)). 

[3]               Because I believe that a juvenile should be afforded the Sixth Amendment confrontation right in the disposition phase, and because of the quasi-criminal nature of juvenile proceedings, I would not apply the harm analysis for civil appeals.  I note that one court has applied a criminal harm analysis in a non-determinate juvenile appeal.  See In re K.W.G., 953 S.W.2d 483, 488 (Tex. App.—Texarkana 1997, pet. denied). Meanwhile, the supreme court and others have reserved the question.  See In re D.I.B., 988 S.W.2d 753, 756 (Tex. 1999); In re L.R., 84 S.W.3d 701, 707 (Tex. App.—Houston [1st Dist.] 2002, no pet.).