James Marcus Miles v. State

Opinion issued July 23, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00047-CR
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JAMES MARCUS MILES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1509077
MEMORANDUM OPINION
Appellant, James Marcus Miles, pleaded guilty to the felony offense of
indecency with a child by sexual contact.1 The trial court found him guilty and
assessed his punishment at confinement for ten years and one day. Appellant timely
1
See TEX. PENAL CODE ANN. § 21.11(a)(1), (c), (d).
filed a pro se notice of appeal.2 The State has filed a motion to dismiss the appeal
for want of jurisdiction. We grant the State’s motion and dismiss the appeal.
An appeal must be dismissed if a certification showing that the defendant has
the right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d);
Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). In this case, the trial
court certified that appellant had waived his right of appeal. And, the trial court’s
judgment states, “APPEAL WAIVED. NO PERMISSION TO APPEAL
GRANTED.”
A valid waiver of appeal—one made voluntarily, knowingly, and
intelligently—prevents a defendant from appealing without the trial court’s consent.
See Carson v. State, 559 S.W.3d 489, 492–93 (Tex. Crim. App. 2018); Ex parte
Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009). “[A] defendant may
knowingly and intelligently waive his appeal as part of a plea when consideration is
given by the State, even when sentencing is not agreed upon.” Carson, 559 S.W.3d
at 494; see Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim. App. 2016) (explaining
presentence waivers of right of appeal have been upheld when record showed
defendant received consideration for waiver pursuant to plea agreement); see also
2
Retained counsel represented appellant in the trial court proceeding. After appellant
filed his pro se notice of appeal, the trial court appointed counsel to represent
appellant on appeal. However, appellant has not responded to the State’s motion to
dismiss.
2
TEX. CODE CRIM. PROC. ANN. art. 1.14 (“The defendant in a criminal prosecution for
any offense may waive any rights secured him by law . . . .”). In this case, appellant
signed a “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial
Confession” stating:
I understand that I have not reached an agreement with the prosecutor
as to punishment. However, in exchange for the State waiving their
right to a jury trial, I intend to enter a plea of guilty without an agreed
recommendation of punishment from the prosecutor and request that
my punishment should be set by the Judge after a pre-sentence
investigation report and hearing. . . . Further, in exchange for the state
giving up their right to trial, I agree to waive any right of appeal which
I may have.
(Emphasis omitted.)3 By agreeing to waive its right to a jury trial, the State gave
consideration for appellant’s waiver of his right to appeal. See Ex parte Broadway,
301 S.W.3d at 697–98. Because the record demonstrates that he waived his right of
appeal, appellant may not appeal his conviction. See id. at 698; Blanco v. State, 18
S.W.3d 218, 220 (Tex. Crim. App. 2000); see, e.g., Macias-Sanchez v. State, No.
14-16-00302-CR, 2017 WL 950129, at *1 (Tex. App.—Houston [14th Dist.] Mar.
9, 2017, no pet.) (mem. op., not designated for publication) (dismissing appeal when
appellant’s plea documents showed appellant waived right to appeal in exchange for
State’s waiving right to jury trial).
3
The “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial
Confession” also indicates that the State agreed to abandon an allegation in an
enhancement paragraph that appellant had been previously convicted of a felony
offense. See TEX. PENAL CODE ANN. §§ 12.32(a), 12.33(a), 12.42(b).
3
Accordingly, we grant the State’s motion to dismiss the appeal and dismiss
the appeal for want of jurisdiction. We dismiss any other pending motions as moot.
PER CURIAM
Panel consists of Justices Lloyd, Landau, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
4