Summary
noting appeal was previously abated and remanded for execution of amended certification under analogous facts
Summary of this case from Ukariwe v. StateOpinion
NO. 01-13-00031-CR
05-14-2013
OSCAR ALLEN MCGAHA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1354337
MEMORANDUM OPINION
Appellant, Oscar Allen McGaha, pleaded guilty to the felony offense of burglary of a habitation. See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). Pursuant to his plea agreement with the State, the trial court deferred adjudication of McGaha's guilt and placed him on community supervision. Subsequently, the State moved to adjudicate his guilt. After he pleaded true to the State's allegations, the trial court sentenced him to four years in prison. The trial court then certified that this "is a plea-bargain case, and the defendant has no right of appeal." Nevertheless, McGaha filed a pro se notice of appeal.
Because McGaha appealed from a plea of true to a revocation motion, he did not attempt to appeal from a plea-bargained case, and the certification of his right of appeal was defective. See Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (holding that Rule of Appellate Procedure 25.2(a)(2) will restrict appeal when appellant appeals placement on deferred adjudication community supervision pursuant to original plea bargain, but will not restrict appeal from proceeding on motion to adjudicate guilt); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005) (holding that Rule 25.2(a)(2) "refers only to plea bargains with regard to guilty pleas, not pleas of true on revocation motions" and "[n]othing in Rule 25.2(a)(2) limits [appellant's] right to appeal"); Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003) ("[I]n the context of revocation proceedings, the legislature has not authorized binding plea agreements."). Accordingly, we abated the case and remanded to the trial court to execute an amended certification of McGaha's right of appeal. The trial court conducted a hearing on our order, at which McGaha stated, after consulting with counsel, that he did not wish to pursue this appeal and that he wanted to waive his right to appeal. After finding that McGaha knowingly and voluntarily waived his right to appeal, the trial court certified that McGaha waived his right of 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, 154 S.W.3d at 613. The trial court's certification, which is included in the record on appeal, states that McGaha waived the right of appeal. See TEX. R. APP. P. 25.2(a). 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). A waiver of appeal made after sentence is imposed is valid. See Moreno v. State, 327 S.W.3d 267, 268-69 (Tex. App.—San Antonio 2010, no pet.); Delatorre v. State, 957 S.W.2d 145, 149 (Tex. App.—Austin 1997, pet. ref'd).
Because McGaha waived his right of appeal after his sentence was imposed, he has no right of appeal, and we must dismiss this appeal. See TEX. R. APP. P. 25.2(d); Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears, 154 S.W.3d at 613.
Accordingly, we reinstate the appeal and dismiss the appeal for want of jurisdiction. We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Sharp, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).