Opinion
No. 06-04-00149-CR
Submitted: March 23, 2005.
Decided: March 30, 2005. DO NOT PUBLISH.
On Appeal from the 276th Judicial District Court, Marion County, Texas, Trial Court No. F13,090.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
On May 21, 2003, Andre Montre Smith waived a jury trial and pled "guilty" to the charge of aggravated assault. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2004-2005). Pursuant to a negotiated plea agreement, the trial court deferred a finding of guilt and placed Smith on community supervision for a period of five years. The State subsequently filed a motion to adjudicate Smith's guilt, and at a hearing September 28, 2004, Smith plead "true" to each allegation contained in the State's motion to adjudicate guilt. Again, pursuant to a negotiated plea agreement regarding sentencing, the trial court sentenced Smith to seven years' imprisonment. Thereafter, Smith orally waived any right to appeal he may have had in this case, a waiver that is further reflected in the trial court's certification of Smith's right to appeal. See Tex.R.App.P. 25.2(d). On October 28, 2004, however, Smith filed a pro se notice of appeal. On January 3, 2005, Smith's appellate counsel filed an Anders brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal, and, as required by Anders, also filed a motion to withdraw. Counsel also sent Smith a copy of the appellate brief and informed Smith of his right to file a pro se response and of his right to review the record. We informed Smith at that time that his response, if any, was due to be filed by February 3, 2005. As of this date, we have not received a responsive pro se brief. We have independently reviewed the record and the brief filed by counsel in this appeal, and we conclude we should dismiss this appeal for want of jurisdiction. As long as it is made knowingly and voluntarily, a defendant's post-sentencing waiver of the right to appeal is both valid and binding. Dorsey v. State, 84 S.W.3d 8, 10 (Tex.App.-Texarkana 2002, no pet.) (citing Blanco v. State, 18 S.W.3d 218, 220 (Tex.Crim.App. 2000) (affirming 996 S.W.2d 435 (Tex.App.-Texarkana 1999); Littlejohn v. State, 33 S.W.3d 41, 43 (Tex.App.-Texarkana 2001, pet. ref'd)). A defendant's valid waiver of appeal serves to deprive the appellate court of jurisdiction. Dorsey, 84 S.W.3d at 10. In Smith's case, the reporter's record shows Smith orally waived his right to appeal after the trial court pronounced sentence in accordance with the negotiated plea agreement. Smith's waiver also occurred after he had first had the opportunity, post-sentencing, to consult with his attorney regarding the effect of waiving the right to appeal. There is nothing in the record before us to suggest the waiver was not made voluntarily and knowingly. Accordingly, we conclude Smith's waiver of appeal is binding and deprives us of jurisdiction. Cf. id.
We dismiss the appeal for want of jurisdiction.
Anders v. California, 386 U.S. 738 (1967).