Richard Allen Mosby v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-03-00014-CR ______________________________



RICHARD ALLEN MOSBY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st Judicial District Court Harris County, Texas Trial Court No. 884754

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Richard Allen Mosby, a medical doctor, was convicted on his plea of guilty pursuant to a plea agreement of the offense of delivery of a prescription for a controlled substance for other than a valid medical purpose and in the course of professional practice. ⁽¹⁾ Mosby was found guilty of a third degree felony. The court assessed punishment at five years' imprisonment and a $500.00 fine, but under the terms of the plea agreement, suspended imposition of that sentence and placed Mosby on community supervision for five years. Mosby was represented by counsel at that time. As part of the plea agreement, Mosby waived his right to have a court reporter present. Although the agreement does not contain an explicit waiver of the right to appeal, there is a stamped notation on the judgment itself that reads, "Appeal waived. No permission to appeal granted."

Mosby has filed a notice of appeal pro se. His notice of appeal tracks the language of Tex. R. App. P. 25.2(b)(3) and specifies the appeal is for a jurisdictional defect, as well as stating that "the substance of the appeal was raised by written Petitions and ruled on before trial and the trial court granted permission to appeal."

We are confronted, however, with the statement in the judgment that Mosby waived his right to appeal. There is no appellate record to contradict this statement, and there can be none, because in the written admonishments and waivers that are part of the plea agreement, Mosby waived his right to have a reporter present at the plea proceeding.

In the absence of evidence to the contrary, we presume the regularity of the trial court's judgment and records. Jones v. State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002). The judgment affirmatively shows this Court that Mosby waived his right to appeal. There is nothing in the clerk's record suggesting otherwise, and no reporter's record is available for preparation or filing that could support any contention that he did not waive his right to appeal or that any such waiver was not made knowingly and voluntarily.

A defendant in a criminal case may waive many rights, including the right to appeal a conviction. A knowing and intelligent waiver of the right to appeal is binding on the defendant and prevents him or her from appealing any issue in the cause without the consent of the court. Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000); Ex parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978); Lacy v. State, 56 S.W.3d 287, 288 (Tex. App.-Houston [1st Dist.] 2001, no pet.); Littleton v. State, 33 S.W.3d 41, 43 (Tex. App.-Texarkana 2000, pet. ref'd); Freeman v. State, 913 S.W.2d 714, 717 (Tex. App.-Amarillo 1995, no pet.). The proper disposition of such a case is not a dismissal for want of jurisdiction, because the waiver does not affect our jurisdiction. Rather, it prevents the defendant from bringing the appeal. Thus, we dismiss the case. Cf. Jack v. State, 871 S.W.2d 741, 744 (Tex. Crim. App. 1994).

Based on the facts set out above, the appeal is dismissed.

Donald R. Ross

Justice

Date Submitted: March 4, 2003

Date Decided: March 5, 2003

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1. See Tex. Health & Safety Code Ann. § 481.071 (Vernon Supp. 2003).

t-family: Times New Roman">Date Decided: April 10, 2007

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