Lawrence Smith v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00430-CR
LAWRENCE SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Lawrence Smith of possessing four or more but
less than 200 grams of cocaine. Appellant elected to have the trial court assess
his punishment, and the trial court sentenced him to twenty-five years’
confinement. The trial court’s certification of defendant’s right of appeal indicates
that Appellant waived his right to appeal. In addition, on September 16, 2010,
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See Tex. R. App. P. 47.4.
the day the trial court imposed Appellant’s sentence, Appellant and his attorney
executed the following:
WAIVER OF APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
I, Lawrence Smith, Defendant in the above entitled and
numbered cause, having been convicted of the offense of POCS w/I
Del 4-200g and sentenced herein, 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
conviction to the Court of Appeals of Texas, and also the right to be
represented on appeal by an attorney of my own choice, or if I am
too poor to pay for such an attorney or the record on appeal, the
Court will, without expense to me, provide me with such an attorney
and a proper record for such an appeal.
With full understanding of the above, I hereby, in open Court,
state that I do not desire to appeal and expressly waive any appeal
in this case, and I hereby accept as final the judgment of conviction
and the sentence herein and I request that I be allowed to
commence serving the same without further delay, and I also, in
open Court, expressly waive the filing of a motion for new trial as
well as any motion in arrest of judgment.
Following this language, Appellant’s signature appears above the line
marked “DEFENDANT.” Below that, Appellant’s attorney’s signature appears
following the words, “Approved by me as the attorney representing the
defendant, and I am present at the time of the sentencing and of this waiver.”
On October 1, 2010, Appellant filed a pro se notice of appeal. In
forwarding the notice of appeal to this court, the trial court expressly denied
Appellant’s request for permission to appeal. The court of criminal appeals has
held that a valid waiver of appeal will prevent a defendant from appealing without
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the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim.
App. 2003).
On October 5, 2010, we sent Appellant’s attorney a letter, advising that the
trial court’s certification states that Appellant has waived his right to appeal and
that unless Appellant or any party desiring to continue the appeal filed with us a
response showing grounds for continuing the appeal, the appeal would be
dismissed. To date, we have received no response from Appellant’s attorney.
On October 8 and October 12, 2010, Appellant filed responses pro se. We
have thoroughly examined both responses and hold that they do not show
grounds for continuing the appeal given Appellant’s express waiver of his right of
appeal.
Accordingly, we hold that Appellant has waived his right to appeal, and we
order this appeal dismissed. See id. at 622-23; Tex. R. App. P. 43.2(f).
PER CURIAM
PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 24, 2010
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