Gilbert Martinez v. State ( 2005 )

                              NUMBER 13-03-120-CR  

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

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GILBERT MARTINEZ,                                                                       Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

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                             On appeal from the 105th District Court

                                        of Nueces County, Texas.

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                               MEMORANDUM OPINION

                         Before Justices Hinojosa, Yañez, and Garza

                                 Memorandum Opinion Per Curiam

Appellant, Gilbert Martinez, attempts to appeal a conviction for aggravated sexual assault of a child.  The trial court has certified that "the defendant has waived the right of appeal."  See Tex. R. App. P. 25.2(a)(2).  This Court notified appellant's counsel of the trial court's certification and ordered counsel to: (1) review the record; (2) determine whether appellant has a right to appeal; and (3) forward to this Court, by letter, counsel's findings as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the existence of any amended certification.  Counsel filed a letter brief with this Court.  Counsel's response does not establish (1) that the certification currently on file with this Court is incorrect, or (2) that appellant otherwise has a right to appeal.

A voluntary, intelligent, and knowing waiver of appeal, whether negotiated or non‑negotiated, prevents a defendant from appealing without the consent of the trial court.  Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003); Escochea v. State, 139 S.W.3d 67, 83-84 (Tex. App.BCorpus Christi, 2004, no pet.).  Pursuant to our examination of the record, we find that appellant executed a written waiver of his right to appeal.  See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (AIf the court chooses to examine a certification after the record is filed, it has the ability to compare the certification to the record and, in that instance, a duty to do so.@). 

Appellant=s counsel executed a certificate stating that he agreed and consented to the waiver and appellant=s plea was made voluntarily, knowingly, and intelligently.  The reporter=s record in this case indicates that the trial court expressly questioned appellant regarding whether or not appellant had read and understood his waiver of rights, and appellant replied in the affirmative.  Appellant stated that he freely and voluntarily signed the waiver.  The trial court expressly denied appellant permission to appeal and certified that he has no right to appeal, which is consistent with a determination that appellant's written waiver of the right to appeal is valid. Escochea, 139 S.W.3d at 83-84. Moreover, based on the record and the pleadings, it appears that appellant executed the waiver in connection with his agreement with the State that the State would recommend a twelve year sentence.  The trial court is in a better position to determine the validity of appellant's waiver and if there is any arguable merit in his desire to appeal.  See id.  We determine that appellant executed a valid waiver of the right to appeal.  Id.; see also Jackson v. State, No. 2-05-103-CR, 2005 Tex. App. LEXIS 4838, *6-*8 (Tex. App.BFort Worth June 23, 2005, no pet. h.) (designated for publication).

  The Texas Rules of Appellate Procedure provide that an appeal must be dismissed if the trial court's certification does not show that the defendant has the right of appeal.  Tex. R. App. P. 25.2(d); see Tex. R. App. P. 37.1, 44.3, 44.4.  The State has filed a motion to dismiss the appeal. We grant the State=s motion and dismiss the appeal.  Any pending motions are denied as moot.

PER CURIAM

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

Memorandum Opinion delivered and filed this

the 7^th day of July, 2005.