Opinion
01-21-00115-CR 01-21-00116-CR
01-25-2022
DANTE SMITH, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court Harris County, Texas Trial Court Case Nos. 1644838, 1644839
Panel consists of Chief Justice Radack and Justices Kelley and Landau.
MEMORANDUM OPINION
PER CURIAM
Appellant, Dante Smith, seeks to appeal the judgments in trial court cause numbers 1644838 and 1644839 convicting him of the second-degree felony offenses of Promotion of Child Pornography and sentencing him to six years' imprisonment. The State has filed a motion to dismiss the appeals for want of jurisdiction. We grant the motion and dismiss the appeals.
Background
Smith pleaded guilty without an agreed punishment recommendation to two counts of the offense of Promotion of Child Pornography. In both cases, Smith signed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" stating that, "in exchange for the state giving up their right to trial, [Appellant] agree[s] to waive any right of appeal which [he] may have." The trial court's certifications of defendant's right of appeal in both cases each noted that it "[wa]s a plea bargain case" and "[Appellant has NO right of appeal."
At the outset of the sentencing hearing for the cases, the trial court reminded Smith that "in exchange for giving up its right to a trial -- for the State giving up its right to a trial, [Smith] waived any right of appeal that he may have with regards to his guilty plea." Smith confirmed that this was his understanding. At the conclusion of the hearing, the court entered judgments convicting Smith of the charged offenses and sentenced Smith to six years' imprisonment for each with the sentences running concurrently.
Notwithstanding Smith's waivers, he filed notices of appeal in both cases. Smith also filed motions requesting permission from the trial court "to appeal or withdraw his plea." The trial court took no action in response to these motions, and they were denied by operation of law.
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 certifications are included in the records on appeal and state that Smith has no right to appeal. As discussed below, the record supports the trial court's certifications that Smith lacks a right to appeal. See Dears, 154 S.W.3d at 615.
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 Smith in both cases state that "in exchange for the state giving up their right to trial, I agree to waive any right of appeal which I may have." More precisely, Smith waived his right to appeal in exchange for the State consenting to Smith'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 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 Smith to waive his right to a jury trial, the State gave consideration for Smith'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 Smith waived his right of appeal and the trial court has not given permission to appeal, Smith has no right of appeal. Dears, 154 S.W.3d at 613.
Accordingly, we grant the State's motion and dismiss these appeals for want of jurisdiction. See Tex. R. App. P. 43.2(f). Any other pending motions are dismissed as moot.