Melissa Irene Carlson v. State

Opinion issued December 22, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00830-CR
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MELISSA IRENE CARLSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case No. 65927
MEMORANDUM OPINION
Appellant, Melissa Irene Carlson, was convicted of the state-jail felony
offense of fraudulent use of identifying information and punishment was assessed at
confinement for two years and a fine of $200.00.1 The trial court suspended the
sentence of confinement and placed appellant on community supervision for a period
of three years. Subsequently, the State moved to revoke appellant’s community
supervision. With an agreed punishment recommendation from the State, appellant
pleaded true to the State’s allegations. The trial court revoked appellant’s
community supervision and, in accordance with the State’s recommendation,
assessed punishment at confinement for eighteen months, with jail-time credit of 179
days. Appellant filed a pro se notice of appeal.2 We 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). The trial court’s
certification, which is included in the record on appeal, states that appellant has
waived her right of appeal.3 See TEX. R. APP. P. 25.2(a).
1
See TEX. PENAL CODE ANN. § 32.51 (Vernon Supp. 2015).
2
After she filed her notice of appeal, appellant notified the trial court clerk that she
did not wish to proceed with the appeal.
3
The certification of appellant’s right of appeal also states that this criminal case “is
a plea-bargain case, and the defendant has NO right of appeal.” Because she is
appealing from her plea of true to a motion to revoke her community supervision,
appellant could not have entered into a “plea bargain” and that portion of the
certification is incorrect. See Wilkerson v. State, 264 S.W.3d 102, 103 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (citing Hargesheimer v. State, 182 S.W.3d 906,
913 (Tex. Crim. App. 2005); Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App.
2003)). Nevertheless, because the record reflects that appellant waived her right to
appeal in exchange for the State’s recommendation on punishment, the trial court’s
certification correctly states that appellant has no right of appeal and we need not
2
A valid waiver of appeal prevents a defendant from appealing without the trial
court’s consent. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). The
record reflects that, on September 19, 2014, appellant swore to a “Stipulation of
evidence,” pleading “true” to the allegations in the State’s motion to revoke her
community supervision and stating, “I waive the right to appeal” and “I
UNDERSTAND THE ADMONITIONS, STATEMENTS AND WAIVERS SET
FORTH ABOVE AND I AM AWARE OF THE CONSEQUENCES OF MY
PLEA.” Also on September 19, 2014, appellant signed a “Plea Agreement on
Motion to Adjudicate/Motion to Revoke” that reflects the State’s recommendation
that appellant’s punishment be assessed at confinement for eighteen months with a
jail-time credit of 179 days. The trial court found allegations in the State’s motion
true, revoked appellant’s community supervision, and assessed punishment in
accordance with the recommendation. Accordingly, the record reflects that appellant
waived her right of appeal in exchange for an agreed punishment recommendation
from the State.
When a defendant waives her right of appeal in exchange for consideration
from the State, her waiver is made knowingly, intelligently, and voluntarily, and she
may not appeal any matters unless the trial court first grants permission. See Ex parte
abate the case to correct the certification. See Dears, 154 S.W.3d at 614; Pena v.
State, 323 S.W.3d 522, 527 (Tex. App.—Corpus Christi 2010, no pet.).
3
Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009) (holding defendant
may knowingly and intelligently waive appeal without sentencing agreement when
consideration is given by State for waiver); Blanco v. State, 18 S.W.3d 218, 219–20
(Tex. Crim. App. 2000) (concluding waiver was valid when defendant waived right
to appeal in exchange for recommended sentence). The record shows that appellant,
along with her plea of true, waived her right to appeal for the State’s
recommendation on punishment and that the trial court did not give its permission
to appeal.
Accordingly, we dismiss the appeal for want of jurisdiction. See Menefee v.
State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears, 154 S.W.3d at 613.
We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Keyes, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
4