Jose Sorto, Jr. v. The State of Texas--Appeal from 185th District Court of Harris County

Opinion issued October 26, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00810-CR

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JOSE SORTO, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1041180

MEMORANDUM OPINION

Appellant, Jose Sorto, Jr., pleaded guilty to the felony offense of burglary of a habitation with intent to commit theft without a plea bargain agreement with the State as to punishment. The trial court deferred adjudication of guilt, placed appellant under the terms and conditions of community supervision for a period of four years, and assessed a fine of $250.

Subsequently, the State filed a motion to adjudicate guilt. Appellant pleaded true to the allegations contained in the State s motion to adjudicate, and signed under oath a written agreement to stipulate to evidence, judicial confession, waiver of constitutional rights, and a waiver of appeal. The document provided, among other things, as follows:

I, the Defendant, stipulate that I have been served with a copy of the State s Motion to Adjudicate Guilt, at least (10) days before the date of this hearing...I do not desire to contest this stipulation of evidence. I consent to the introduction of testimony by affidavits, written statement of witnesses and other documentary evidence...I understand the allegations against me set out in the State s motion. I judicially confess that it is true that I violated the terms and conditions of any probation and that the allegations...in the State s motion are true. I intend to enter a plea of true to the State s Motion. I understand that the prosecutor will recommend that I be adjudicated guilty and my punishment should be set at four years Texas Department of Criminal Justice and a fine of $250 and I agree to that recommendation...

The stipulation document has a section titled waiver of appeal and contains the initials of the appellant beside the statement: As part of my agreement with the prosecutor to plead true, I agree to waive any right to appeal I may have concerning any issue or claim in this case, including my plea of true or admission of guilt. The document was also signed by appellant s counsel, the prosecutor and the trial court.

The trial court proceeded to find the allegations in the State s motion to adjudicate true. The trial court then found appellant guilty of the offense of injury to a child. The trial court in accordance with the appellant s plea bargain agreement with the State assessed punishment at confinement for four years and a $250 fine.

Despite having waived the right to appeal, appellant filed a pro se notice of appeal. There is nothing in the record indicating that appellant s waiver of his right to appeal was not voluntarily, knowingly, and intelligently made. There is also nothing indicating that the trial court gave her consent for an appeal.

A valid waiver of the right to appeal will prevent a defendant from appealing without the consent of the trial court. Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003); see also Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000); Buck v. State, 45 S.W.3d 275, 278 (Tex. App. Houston [1st Dist.] 2001, no pet.); cf. Alzarka v. State, 90 S.W.3d 321, 323-24 (Tex. Crim. App. 2002) (holding the record directly contradicted and rebutted any presumption raised by the form waiver with numerous references to appeal from ruling on pretrial motion and trial court gave consent for appeal).

Because the record in this case reflects that appellant s waiver of the right to appeal was valid and that the trial court did not consent to an appeal, we order the appeal dismissed.

All pending motions are denied as moot.

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).