Durham, Patrick Allen v. State ( 2000 )

NUMBER 13-98-00568-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

PATRICK ALLEN DURHAM,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 105th District Court of Kleberg County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Justice Yañez

Following the trial court's denial of his pre-trial motion to suppress evidence, Patrick Allen Durham, appellant, pleaded guilty to the offense of possession of a controlled substance. See Tex. Health & Safety Code Ann. §481.115 (Vernon Supp. 2000). On September 9, 1998, pursuant to a plea agreement, the trial court deferred an adjudication of guilt and placed him on community supervision for a period of two years, imposed a fine of $100, and ordered restitution in the amount of $250. On September 30, 1998, Durham appealed,⁽¹⁾ contending the trial court erred in denying his pre-trial motion to suppress evidence.⁽²⁾ We hold that he waived his right to appeal and dismiss.

A criminal defendant may waive many of his rights, including the right of appeal. Turner v. State, 956 S.W.2d 789, 790 (Tex. App.--Waco 1997, no pet.); Perez v. State, 885 S.W.2d 568, 570 (Tex. App.--El Paso 1994, no pet.). 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. Turner, 956 S.W.2d at 790; Perez, 885 S.W.2d at 570. Appellant is deemed to have knowingly and voluntarily agreed to the terms of the plea bargain as set forth by his trial counsel unless he shows otherwise. Perez, 885 S.W.2d at 570 (citations omitted). 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. Id.

Appellant waived his right to appeal all pre-trial motions pursuant to a plea agreement entered into with the State. The waiver was made an express part of the plea bargain and is contained in a document entitled "Plea Agreement." The agreement states, in pertinent part:

The defendant, Patrick A. Durham, . . . agrees:

. . . .

to plead guilty/nolo contendere to the offense of possession of a controlled substance less than one (1) gram.

To waive all pretrial motions on file.

To waive his right against self-incrimination and make a written/oral judicial confession under oath.

To be punished as recommended by the State.

. . . .

The defendant understands the following:

. . . .

(2) that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney he cannot appeal his conviction without permission of the Court for jurisdictional defects or errors that occurred before entry of the plea;

In exchange, the State agreed to recommend deferred adjudication, community supervision for a period of two years, a fine of $100, and restitution in the amount of $250. The punishment assessed by the trial court was in accordance with the plea agreement. Durham and his attorney signed the plea agreement.

The record before us does not indicate that Durham obtained the permission of the trial court to appeal his conviction. Further, he has made no claim that his waiver of appeal was coerced or involuntary or that he did not knowingly and voluntarily agree to the terms of the plea agreement.

We hold Durham knowingly and voluntarily waived his right to appeal as part of the plea agreement. The appeal is dismissed.

________________________

LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 15^th day of June, 2000.

1. In 1987, the Legislature enacted article 44.01(j) of the Texas Code of Criminal Procedure, which provides that a defendant may appeal where punishment is assessed in conformance with the deferred adjudication statute. See Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Supp. 2000); Kirby v. State, 883 S.W.2d 669, 671 n.3 (Tex. Crim. App. 1994) (noting that article 44.01(j) allows a criminal defendant to appeal even though he has received deferred adjudication and has not been adjudicated guilty); Schooler v. State, 12 S.W.3d 842, 844 (Tex. App.--Texarkana 2000, pet. ref'd).

2. Durham's notice of appeal stated that the trial court overruled his motion to suppress on September 3, 1998. Thus, the notice of appeal complies with Texas Rule of Appellate Procedure 25.2(b)(3)(B). See Tex. R. App. P. 25.2(b)(3)(B).