Joseph Lee Taylor v. State ( 2017 )

Opinion issued February 9, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00800-CR
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JOSEPH LEE TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case No. 76613-CR
MEMORANDUM OPINION
A jury found appellant, Joseph Lee Taylor, guilty of the felony offense of
driving while intoxicated, third offense or more.1 Appellant then entered into a plea
1
See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2016); see also
id. § 12.42(d) (providing at trial of felony offense, other than unaggravated state jail
felony, defendant punished by imprisonment for life or any term not more than 99
agreement in which he waived his right to appeal in exchange for the State’s
recommendation as to punishment. The trial court accepted the agreement, found
appellant guilty, assessed his punishment at confinement for twenty-six years, and
certified that appellant had waived his right of appeal. Appellant timely filed a pro
se motion for new trial and notice of appeal.
We dismiss the appeal.
A valid waiver of appeal—one made voluntarily, knowingly, and
intelligently—prevents a defendant from appealing without the trial court’s consent.
See Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009) (citing TEX.
CODE CRIM. PROC. ANN. art. 1.14 (Vernon 2005); Monreal v. State, 99 S.W.3d 615,
617 (Tex. Crim. App. 2003)); see also Jones v. State, 488 S.W.3d 801, 807 (Tex.
Crim. App. 2016) (noting presentence waivers of right of appeal upheld where
record shows defendant received consideration for waiver pursuant to plea
agreement); Blanco v. State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000)
(concluding waiver valid where defendant waived right to appeal in exchange for
recommended sentence).
Here, the State, appellant, and his counsel signed a “Plea Agreement,”
reflecting a “guilty plea” and a punishment recommendation of twenty-six years
years or less than 25 years upon proof of two previous sequential felony
convictions).
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with a jail-time credit of 401 days, and stating that “[d]efendant waives right to
appeal.”2 Appellant swore to “Defendant’s Admonitions, Waivers, Judicial
Confessions, Statements, Plea, Probation and Appeal-Felony Less than Capital
(Incarceration),” in which he stated:
I also waive and give up the 30 days provided in which to file a motion
for new trial, motion for arrest of judgment and notice of appeal and I
waive my right to appeal.
The State and I mutually recommend to the Court the punishment
in this case be assessed at: 26 (. . . Years) . . . .
I agree and stipulate that my jail credit for time served is 401
days.
He initialed the statement, “I plead true to the enhancements pled in this case and
not abandoned by the State,” pleading true to the allegations in two enhancement
paragraphs in the indictment that he had prior convictions for the felony offenses of
robbery and possession of a controlled substance. The trial court accepted the
agreement, found appellant guilty, assessed his punishment at confinement for
twenty-six years, and certified that he waived his right to appeal. Thus, the record
shows that appellant waived his right to appeal in exchange for the State’s
punishment recommendation. And the trial court did not give him permission to
appeal.
2
Appointed counsel represented appellant in the trial court. Retained counsel
appeared on appellant’s behalf in this Court. See TEX. R. APP. P. 6.2.
3
This Court notified appellant of our intent to dismiss the appeal unless he
demonstrated that we have jurisdiction. See Dears v. State, 154 S.W.3d 610, 613
(Tex. Crim. App. 2005) (citing TEX. R. APP. P. 25.2(d)) (“The court of appeals must
dismiss an appeal if a certification showing that the defendant has the right to appeal
is not made a part of the appellate record.”); cf. TEX. R. APP. P. 42.3(a) (providing
for notice of intent to dismiss in civil case). Appellant responded, asserting that,
“regardless of the certificate’s indication of waiver,” he “retain[ed] his right of
appeal, at least with regard to [his] motion for new trial.” He “concedes that such
an appeal may be limited to the voluntariness of his plea regarding the effectiveness
of counsel and whether the trial court abused its discretion in failing to grant a
hearing” on his pro se new trial motion. In his motion, appellant asserted that his
trial counsel rendered ineffective assistance by not objecting to the introduction of
evidence, filing a motion to suppress evidence, and preserving his right to appeal,
and “mislead[ing] him” into changing his election on assessment of punishment and
“in the area of the [enhancement] statute.” Appellant attached to the motion his
affidavit and he requested a hearing on the motion, which was overruled by operation
of law. See TEX. R. APP. P. 21.8(a), (c).
However, appellant’s desire to assert on appeal claims about the voluntariness
of this plea, the effectiveness of his trial counsel, and the trial court’s not holding a
hearing on the motion does not confer jurisdiction over the appeal. See Turley v.
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State, 242 S.W.3d 178, 179–80 (Tex. App.—Fort Worth 2007, no pet.) (citations
omitted) (concluding, in plea-bargained case, court of appeals could not consider
claim about trial court’s not holding hearing on motion for new trial without
permission to appeal); Estrada v. State, 149 S.W.3d 280, 283 (Tex. App.—Houston
[1st Dist.] 2004, pet. ref’d) (stating denial of motion for new trial not appealable in
plea-bargained case without trial court’s permission); see, e.g., Zendejas v. State,
No. 05-16-00848-CR, 2016 WL 6078569, at *2 (Tex. App.—Dallas Oct. 17, 2016)
(mem. op., not designated for publication) (citations omitted) (concluding notice of
appeal did not invoke court of appeals’ jurisdiction over matters raised in motion for
new trial where defendant entered into plea-bargain agreement and waived right to
appeal). Because the record demonstrates that he waived his right to appeal knowing
with certainty the punishment to be assessed without obtaining the trial court’s
consent to appeal, appellant may not appeal his conviction. See Ex parte Broadway,
301 S.W.3d at 697; Blanco, 18 S.W.3d at 219.
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all
pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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