Grant Gordon Gardner v. State ( 2002 )

MARY'S OPINION HEADING NO. 12-02-00290-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GRANT GARDNER,

§ APPEAL FROM THE 114TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

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PER CURIAM

This attempted appeal is being dismissed because Appellant waived his right to appeal. On August 26, 2002, Appellant pleaded guilty to the offense of aggravated robbery, and the court sentenced him to twenty years of imprisonment. Following conviction, 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 on August 26, 2002. On September 16, 2002, Appellant filed a pro se notice of appeal.

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 2003). A knowing and intelligent waiver of the right to appeal made after sentence is imposed will prevent a defendant from appealing unless the trial court gives permission to appeal. 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.

Nothing in the record shows that Appellant's waiver of the right to appeal was not voluntarily and intelligently made. The document Appellant signed, entitled "Waiver of Motion for New Trial and Motion in Arrest of Judgment and Waiver of Right to Appeal" ("Waiver"), acknowledged that sentence had been imposed, that he understood he had the right to file a motion for new trial, motion in arrest of judgment and a notice of appeal, and that after consulting with his counsel concerning his right to file these documents, he waived those rights. The Waiver was also signed by Appellant's trial counsel and represented that he had consulted with and advised Appellant concerning his right to file the foregoing motions and notice of appeal, and Appellant was expressly waiving his right to appeal. The trial court then entered the following ruling:

On this day came for consideration the Defendant's motion to waive the time for filing a motion for new trial and motion in arrest of judgment and to waive his/her right to appeal, and having considered the same, the said motions are hereby GRANTED and said waivers are accepted.

Rule 44.3 of the Texas Rules of Appellate Procedure requires that an Appellant be notified and given an opportunity to correct or amend defects or irregularities in appellate procedure prior to the dismissal of an appeal on that basis. Appellant's waiver of the right to appeal was not a defect or irregularity in appellate procedure. Moreover, by letter dated December 2, 2002, Appellant's trial counsel has notified this court that he was appointed to investigate the possibility of appeal from Appellant's plea and sentence. After conducting an investigation, counsel has concluded that there was no error made at the plea and sentence hearing and recommends that this appeal be dismissed for want of jurisdiction. Counsel has notified Appellant of his conclusion and recommendation.

Because Appellant appears to have knowingly and voluntarily forfeited his right to appeal after sentence was imposed, and the trial court did not grant him permission to appeal, his notice of appeal was ineffectual and the waiver is binding upon him. Hill v. State, 929 S.W.2d 607, 609 (Tex. App.- Waco 1996, no pet.); Smith, 858 S.W.2d at 609.

This appeal is dismissed for want of jurisdiction.

Opinion delivered December 4, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)







COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT

DECEMBER 4, 2002

NO. 12-02-00290-CR

GRANT GARDNER, Appellant V. THE STATE OF TEXAS, Appellee

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Appeal from the 114th Judicial District Court of Smith County, Texas. (Tr.Ct.No. 114-0594-02)

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THIS CAUSE came to be heard on the appellate record, and the same being inspected, it is the opinion of this Court that Appellant has waived his right to appeal his conviction and that the appeal should be Dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by the court that this appeal be, and the same is, hereby Dismissed for want of jurisdiction.

By per curiam opinion.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.