Abel Ramirez v. the State of Texas

Opinion issued November 16, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00087-CR
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ABEL RAMIREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1558533
MEMORANDUM OPINION
Appellant, Abel Ramirez, seeks to appeal the judgment convicting him of the
offense of sexual assault of a child and sentencing him to twelve years’ confinement.
We dismiss the appeal for want of jurisdiction.
Background
Ramirez pleaded guilty to the second-degree felony offense of sexual assault
of a child. See TEX. PENAL CODE § 22.011(a)(2). Ramirez signed a “Waiver of
Constitutional Rights, Agreement to Stipulate, and Judicial Confession” in which he
entered a guilty plea without an agreed punishment recommendation and requested
that the trial court set his punishment. In the document, Ramirez states that “Further,
in exchange for the [S]tate giving up their right to trial, I agree to waive any right of
appeal which I may have.”
The trial court entered a judgment convicting Ramirez of the charged offense
and sentenced Ramirez to twelve years’ imprisonment. The trial court’s certification
of defendant’s right to appeal provides that “The defendant has waived the right of
appeal.” Notwithstanding the certification, Ramirez filed a notice of appeal.
Discussion
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. See 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 is included in the record on appeal and states that Ramirez waived his
right of appeal. As discussed below, the record supports the trial court’s certification
that Ramirez waived his right to appeal. See Dears, 154 S.W.3d at 615.
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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); see also TEX. CODE CRIM.
PROC. art. 1.14(a) (“The defendant in a criminal prosecution for any offense may
waive any rights secured him by law . . . .”). “[A] defendant may knowingly and
intelligently waive his entire appeal as a part of a plea, even when sentencing is not
agreed upon, where consideration is given by the State for that waiver.” Ex parte
Broadway, 301 S.W.3d at 699; see Jones v. State, 488 S.W.3d 801, 807 (Tex. Crim.
App. 2016) (concluding that defendant waived right to appeal in exchange for State’s
abandonment of enhancement pursuant to plea agreement without agreement as to
punishment).
The “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial
Confession” signed by Ramirez states that “in exchange for the [S]tate giving up
their right to trial, I agree to waive any right of appeal which I may have.” More
precisely, Ramirez waived his right to appeal in exchange for the State’s consenting
to Ramirez’s waiver of his right to jury trial. See TEX. CODE CRIM. PROC. art.
1.13(a) (“The defendant in a criminal prosecution for any offense other than a capital
felony case in which the [S]tate notifies the court and the defendant that it will seek
the death penalty shall have the right, upon entering a plea, to waive the right of trial
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by jury, conditioned, however, that, except as provided by [a]rticle 27.19, the waiver
must be made in person by the defendant in writing in open court with
the consent and approval of the court, and the attorney representing the [S]tate.”
(emphasis added)). By providing the required consent for Ramirez to waive his right
to a jury trial, the State gave consideration for Ramirez’s waiver of his right to
appeal. See Carson, 559 S.W.3d at 492–96; Ex parte Broadway, 301 S.W.3d at 696–
99. Because the trial court’s certification that Ramirez waived his right of appeal is
supported by the record and the trial court has not given permission to appeal,
Ramirez has no right of appeal. Dears, 154 S.W.3d at 613.
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 43.2(f). Any pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Goodman, Rivas-Molloy, and Farris
Do not publish. TEX. R. APP. P. 47.2(b).
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