John Wesley Peavy v. State ( 2009 )

Opinion issued April 16, 2009

    In The

Court of Appeals

For The  

First District of Texas

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NO. 01-09-00131-CR

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JOHN WESLEY PEAVY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1148067   

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MEMORANDUM OPINION

          We lack jurisdiction to hear this appeal. Appellant, John Wesley Peavy, pleaded guilty to the offense of possession of a controlled substance, and pleaded true to two enhancement paragraphs contained in the indictment. In accordance with his plea bargain agreement with the State, the trial court sentenced appellant to confinement for 10 years. Along with the plea, appellant, appellant’s counsel, and the State signed a stipulation of evidence which included, among others, the following statements: “I intend to enter a plea of guilty and understand that the prosecutor will recommend that my punishment should be set at 10 years TDC; I agree to that recommendation...Further, I waive my right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor.” In addition, appellant signed the a document styled “advice of defendant’s right to appeal” that included the following admonition “The Court, pursuant to Tex. R. App. P. 25.2, advises the Defendant as follows: (2) If you pled guilty of no contest and accepted the punishment recommended by the prosecutor, however, you cannot appeal your conviction unless this Court gives you permission. If you waived or gave up your right to appeal, you cannot appeal your conviction.” The advice of defendant’s right to appeal form was sworn to by appellant and is also signed by the trial court judge. The trial court’s judgment is stamped, “Appeal waived. No permission to appeal granted.”

           After the trial court sentenced appellant to punishment that fell within the terms of the plea bargain agreement, the trial court certified that this case is a plea- bargain case and the defendant has no right to appeal. Appellant did not request the trial court’s permission to appeal any pre-trial matters, and the trial court did not give permission for appellant to appeal. Appellant filed a timely pro se notice of appeal. This appeal followed.

          We conclude that the certification of the right of appeal filed by the trial court is supported by the record and that appellant has no right of appeal due to the agreed plea bargain. Tex. R. App. P. 25.2(a). Because appellant has no right of appeal, we must dismiss this appeal “without further action.” Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).Accordingly, the appeal is dismissed for lack of jurisdiction.

          Any pending motions are denied as moot.

PER CURIAM

Panel consists of Justice Taft, Bland and Sharp.

Do not publish. Tex. R. App. P. 47.2(b).