Kenya Ricardo Fields v. State ( 2002 )

MARY'S OPINION HEADING NO. 12-02-00088-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENYA RICARDO FIELDS,

§ APPEAL FROM THE 114TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

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MEMORANDUM OPINION ⁽¹⁾

This attempted appeal is being dismissed because Appellant waived his right to appeal. On November 30, 2001, Appellant pleaded guilty to the offense of indecency with a child, and the court sentenced him to sixteen 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 February 5, 2002.

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 2002). A knowing and intelligent waiver of the right to appeal made after sentence is imposed will prevent a defendant from appealing without the consent of the trial court. 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.

Furthermore, 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. Nevertheless, because it appeared that Appellant's appeal would have to be dismissed due to his waiver of that right, as a courtesy to Appellant, this court notified him on May 10, 2002 that because he had waived his right to appeal after sentence was imposed, the record did not support his presentation of an appeal. Appellant was then informed that he had ten days to establish his right to appeal, and if he was unable to do so within that time, the case would be dismissed. The deadline for responding to this court's notice expired on May 20, 2002, but as of May 28, 2002, Appellant had not responded.

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.

Accordingly, this appeal is dismissed.

Opinion delivered May 31, 2002

Panel consisted of Worthen, J., and Griffith, J.

(DO NOT PUBLISH)

1. See Tex. R. App. P. 47.1.