April Marie Martinez v. the State of Texas

Opinion filed May 6, 2021
In The
Eleventh Court of Appeals
___________
No. 11-21-00065-CR
___________
APRIL MARIE MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-20-1211-CR
MEMORANDUM OPINION
Appellant, April Marie Martinez, entered into a plea of true to the allegations
in the State’s motion to adjudicate. The trial court adjudicated Appellant guilty of
the state jail felony offense of possession of a controlled substance and assessed
Appellant’s punishment at confinement for twenty-four months in a state jail facility
and a fine of $550. Appellant then waived her right of appeal. We dismiss the
appeal.
This court notified Appellant by letter that the trial court had certified that
Appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d). We requested
that Appellant respond and show grounds to continue the appeal. Appellant has filed
a response but has not shown grounds upon which this appeal may be continued.
We note at the outset that, contrary to the trial court’s certification of
Appellant’s right of appeal, this appeal does not involve a true plea-bargain situation,
i.e., a negotiated punishment in exchange for a plea of “guilty.” See TEX. R. APP. P.
25.2(a)(2); see also Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex. Crim. App.
2006) (holding that Rule 25.2(a)(2) extends only to appeals from the initial plea of
guilty in exchange for deferred adjudication, not to appeals from the proceeding on
the motion to adjudicate guilt). Rather, this is an appeal from a judgment
adjudicating guilt after a plea of true to the allegations in the State’s motion to
adjudicate. To the extent that Appellant is attempting to appeal the original order
deferring the adjudication of her guilt and any related plea bargain, she is prevented
from doing so in this appeal. See Hargesheimer, 182 S.W.3d at 912.
The trial court also certified that Appellant waived her right of appeal. See
TEX. R. APP. P. 25.2(d). In conjunction with the adjudication of her guilt on April 8,
2021, Appellant signed a “Waiver of Right of Appeal – Revocation of Probation” in
which she acknowledged that both her attorney and the trial court had fully informed
her of her right to appeal and her right to have an attorney appointed to represent her
on appeal. Appellant’s waiver specifically provided:
I, the Defendant . . . having had my probationary sentence
revoked and sentence pronounced, hereby expressly state as a fact that
I have been fully informed by the Judge of this Court and by my
attorney and I know, that I have the legal right of appeal from this
revocation . . . .
With full knowledge and understanding of the above, I hereby,
in Open Court, state that I do not desire to appeal and expressly waive
2
my right of appeal and I hereby accept as final the Order revoking
probation herein.
The waiver was signed by Appellant, her attorney, and the trial judge.
The documents on file in this appeal therefore show that Appellant waived her
right of appeal and that she was fully aware of the likely consequences at the time
she did so. See Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000). Texas
has “long held that a valid waiver of appeal prevents a defendant from appealing
without the trial court’s consent.” Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim.
App. 2003). A waiver of the right to appeal is valid if it was made voluntarily,
knowingly, and intelligently. Id. In Monreal, the court reaffirmed that “a valid
waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant
from appealing without the consent of the trial court.” Id. at 622. We note that the
trial court has not consented to this appeal. Accordingly, we dismiss this appeal
without further action. See id. at 622–23; see also TEX. R. APP. P. 25.2(d).
This appeal is dismissed.
PER CURIAM
May 6, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
3