Ruben Moreno v. State ( 2010 )

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OPINION
No. 04-10-00007-CR
Ruben MORENO,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 01-0697-CR
Honorable Dwight E. Peschel, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 21, 2010
STATE’S MOTION TO DISMISS GRANTED AND APPEAL DISMISSED
In 2002, appellant Ruben Moreno pleaded nolo contendere to the offense of delivery of
marijuana pursuant to a plea bargain agreement. Pursuant to the plea agreement, the trial court
sentenced him to ten years confinement, but in lieu of confinement, placed appellant on community
supervision for a term of ten years. In 2009, the State filed its third motion to revoke appellant’s
community supervision. The State ultimately alleged appellant violated seven conditions of
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probation. In response, appellant signed a “Stipulation and Judicial Confession” in which he pled
true to violating six of the seven conditions asserted in the State’s motion to revoke. In addition to
pleading true to numerous probation violations, appellant also waived numerous rights, including
his right to appeal.
The trial court revoked appellant’s probation, and sentenced him to ten years confinement
in the Texas Department of Criminal Justice-Institutional Division. The trial court completed a
certification of the defendant’s right to appeal pursuant to rule 25.2(d). See TEX . R. APP . P. 25.2(d).
In that certification, the trial court stated appellant had waived his right to appeal. It appeared the
waiver was invalid because according to the record before this court, it was not made pursuant to an
agreement on sentencing, or made post-sentencing.1 Compare Blanco v. State, 18 S.W.3d 218, 220
(Tex. Crim. App. 2000) with Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977).
Accordingly, we ordered the trial court to amend its certification. See TEX . R. APP. P. 25.2(f).
When the trial court filed its amended certification, the trial court also included a statement
that appellant orally waived his right to appeal “at the conclusion of the revocation hearing and
sentencing.” According to the trial court, the waiver was made in open court, under oath, and with
counsel present. Subsequently, the State filed a motion asking this court to (1) reconsider our order
requiring the trial court to amend the certification, and (2) strike the amended certification. The State
also filed a motion to dismiss the appeal based on appellant’s waiver. Given the information
provided this court in the trial court’s amended certification regarding appellant’s oral waiver, we
granted the State’s motion to reconsider and motion to strike and ordered our February 10, 2010
1
… No reporter’s record has been filed in this case. Thus, when we ordered the trial court to amend its
certification, we where unaware of any oral waiver of the right to appeal.
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order withdrawn and the trial court’s amended certification stricken. We further ordered appellant
to show cause why this appeal should not be dismissed based on the waiver of appeal. We stated
that if appellant did not show cause why this appeal should not be dismissed, we would dismiss the
appeal. Appellant did not file a response to our show cause order.
In Monreal v. State, the court of criminal appeals held that “[a] valid waiver of appeal,
whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent
of the trial court.” 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). However, the court of criminal
appeals has also held that pre-sentencing waivers of the right to appeal are not “valid” because they
cannot, as a matter of law, be made knowingly, voluntarily, and intelligently. Thomas, 545 S.W.2d
at 470. In Blanco, the court distinguished Thomas. Blanco, 18 S.W.3d at 220. In Blanco, after a
jury convicted the defendant but before sentencing, the defendant and the State entered into an
agreement by which the State promised to recommend a sixteen-year sentence. Id. In exchange, the
defendant promised not to appeal his conviction. Id. The court of criminal appeals held the
defendant in Blanco waived his right to appeal despite the fact it was made pre-sentencing because
unlike the defendant in Thomas, the defendant in Blanco bargained for a sentencing recommendation
in exchange for his waiver of the right to appeal, which was honored by the trial court. Id. Thus,
pursuant to the court’s holdings in Monreal, Thomas, and Blanco, a waiver of the right to appeal is
valid, i.e., knowingly, voluntarily, and intelligently made, when the waiver is made subject to a
bargained for sentencing recommendation, which is subsequently followed by the trial court, or when
the waiver is made post-sentencing. A waiver is valid under those circumstances because in both
instances the defendant, at the time of the waiver, knows the likely consequences of the waiver. See
Tufele v. State, 130 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In this
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case, as noted above, the trial court has advised this court in writing that appellant made an oral
waiver of his right to appeal after the trial court imposed a ten year sentence. Because the waiver
was made after sentencing, appellant, like the defendant in Monreal, knew the consequences of the
waiver. This rendered his waiver valid, i.e., it was knowingly, voluntarily, and intelligently made.
The fact that the waiver was oral rather than written is of no consequence. See Delatorre v. State,
957 S.W.2d 145, 149 (Tex. App.—Austin 1997, pet. ref’d) (holding written or oral waiver prevents
defendant from appealing as long as waiver was made knowingly, intelligently, and with certainty
as to what punishment would be assessed).
Based on the foregoing, we hold appellant has waived his right to appeal. Accordingly, we
grant the State’s motion to dismiss the appeal and the appeal is dismissed.
Marialyn Barnard, Justice
Publish
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