Sean Ewalt v. State ( 2010 )

NO

NO. 12-09-00211-CR

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

SEAN EWALT,                                                  '     APPEAL FROM THE

APPELLANT

                                                                             '     COUNTY COURT AT LAW NO. 3 OF

THE STATE OF TEXAS,                                 '     SMITH COUNTY, TEXAS

APPELLEE

MEMORANDUM OPINION DENYING REHEARING

            Appellant Sean Ewalt has filed a motion for rehearing, which is overruled.  However, our opinion of September 30, 2009 is withdrawn, and the following opinion is substituted in its place.

Background

            Pursuant to a plea bargain, Appellant pleaded guilty to misdemeanor theft and signed written plea admonishments.  The document including the admonishments also included a waiver of Appellant’s right to counsel and a warning that if the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to “by you and your attorney,” no appeal could be prosecuted except by permission of the trial court.  In accordance with the prosecutor’s recommendation, the trial court sentenced Appellant to sixty days of confinement.  Appellant filed a motion for new trial asserting that the waiver of his right to counsel was obtained in violation of the code of criminal procedure.[1] The motion was overruled by operation of law,[2] and Appellant filed a notice of appeal stating his desire to “appeal from his conviction.”  We received the trial court’s certification, which states that this “is a plea-bargain case, and the defendant has NO right of appeal.”  The certification also states that Appellant waived his right to appeal and is signed by Appellant and his counsel.

            Appeals from misdemeanor convictions based on plea bargained guilty or nolo contendere pleas followed by the trial court are governed by Texas Rule of Appellate Procedure 25.2(a)(2).  Webb v. State, No. 02–02–00432–CR, 2003 WL 21666630, at *1 (Tex. App.—Fort Worth July 17, 2003, pet. ref’d) (mem. op., not designated for publication).  Rule 25.2(a)(2) limits the right to appeal in a plea bargain case to those matters that were raised by a written motion filed and ruled on before trial or those matters for which the trial court has given permission to appeal.  Tex. R. App. P. 25.2(a)(2).  The limitation on the right to appeal extends to complaints relating to a trial court’s ruling on a motion for new trial.  See Whitfield v. State, 111 S.W.3d 786, 788-89 (Tex. App.–Eastland 2003, pet. ref’d) (dismissing appeal from plea bargained felony case in which appellant had not obtained permission to appeal denial of motion for new trial).

Here, Appellant’s complaint relates to the trial court’s failure to grant his motion for new trial.  However, the record does not show that Appellant obtained the trial court’s permission to appeal any issues relating to the motion for new trial.  Therefore, the record furnished in this proceeding supports the trial court’s certification that this is a plea bargain case and Appellant has no right to appeal.  Accordingly, the appeal is dismissed.[3]

                                                                                                SAM GRIFFITH   

Justice

Opinion delivered January 13, 2010.

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

(DO NOT PUBLISH)

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[1] “A defendant may voluntarily and intelligently waive in writing the right to counsel.”  Tex. Code Crim. Proc. Ann.  art. 1.051 (Vernon Supp. 2009).  But in an adversary judicial proceeding that may result in punishment by confinement, the state’s attorney may not initiate or encourage an attempt to obtain from a defendant who is not represented by counsel a waiver of his right to counsel.  Id. art. 1.051(f-1)(1) (Vernon Supp. 2009).  Appellant asserted in his motion for new trial that the prosecutor violated this prohibition.

[2] Although the trial court’s docket sheet contains a notation that the trial court “denied Mtn. for New Trial,” the record contains no written order denying the motion.  Therefore, we assume that no such order exists and consider the motion overruled by operation of law.  See Tex. R. App. P. 21.8 (“A motion [for new trial] not . . . ruled on by written order [within seventy-five days after imposing or suspending sentence in open court] will be deemed denied when [that time period] expires.”).

[3] Because the record supports the trial court’s certification that this is a plea bargain case and Appellant has no right to appeal, we need not address the portion of the certification stating that Appellant waived the right to appeal.