Roman Shea Gibbons v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-96-254-CR

ROMAN SHEA GIBBONS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 21776CR

O P I N I O N

Appellant, Roman Shea Gibbons, was convicted by a jury of engaging in organized criminal activity. See Tex. Pen. Code Ann. 71.02 (Vernon 1994 & Supp. 1997). Gibbons waived a jury determination of his sentence and entered into a plea agreement for punishment. The plea agreement provided that Gibbons ten year sentence would be suspended and he would be placed on community supervision for ten years. The agreement also provided that Gibbons would pay $7,500 in restitution and pay a $10,000 fine. As part of this plea bargain Gibbons signed a Waiver of the Right to File Motion for New Trial and/or to Appeal. The trial court s judgment followed the plea agreement and was filed on October 25, 1996.

On November 13, 1996, Gibbons, acting pro se, filed a notice of appeal. The State filed a motion to dismiss the appeal asserting that Gibbons signed waiver of his right to appeal precluded him from appealing, absent consent from the trial court. See Hill v. State, 929 S.W.2d 607, 608 (Tex. App. Waco 1996, no pet.). Gibbons objected to the State s motion to dismiss and stated in his response that the waiver was signed because:

Appellant was not given sufficient time to review [the] papers that he signed, citing defense attorney order that he would be sent to prison for a period of twenty years if he didn t sign [the] papers.

When a defendant knowingly and intelligently waives his right to appeal, this agreement prevents the defendant from appealing any issue in the cause without the consent of the court. Id. A waiver of right to appeal after the defendant has been convicted at a jury trial is as effective as one executed pursuant to a plea agreement wherein the defendant pleads guilty and waives his right to appeal. Freeman v. State, 913 S.W.2d 714, 717 (Tex. App. Amarillo 1995, no pet.); Doyle v. State, 888 S.W.2d 514, 517-18 (Tex. App. El Paso 1994, pet. ref d); Smith v. State, 858 S.W.2d 609, 611 (Tex. App. Amarillo 1993, pet ref d). Nevertheless, a defendant may always appeal a claim that he did not voluntarily agree to the plea bargain waiving his right to appeal. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996). Gibbons response to the State s motion to dismiss raises a claim that Gibbons did not voluntarily agree to waive his right to appeal because he was coerced into signing the waiver by his lawyer who did not give him sufficient time to review the document. Thus, the State s motion to dismiss Gibbons appeal was properly denied. See id.

Despite having properly objected to the State s motion to dismiss, Gibbons appellate brief does not raise the issue of whether Gibbons waiver of his right to appeal was a voluntary decision. None of Gibbons points of error allege that this waiver was executed involuntarily, and thus, Gibbons has not presented any complaint that we may review. See Tex. R. App. P. 74(f);Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995). Additionally, when this court abated Gibbons appeal in order for the trial court to conduct a hearing on whether Gibbons was indigent and entitled to appointed counsel, the trial court heard testimony and made findings regarding Gibbons waiver of his right to appeal. At the hearing Gibbons trial attorney stated that Gibbons voluntarily signed the waiver of right to appeal after the lawyer explained the effect of this document. The district attorney s secretary, who was present when the plea papers were signed, also testified that Gibbons had not been forced to sign the plea agreement. Furthermore, the trial judge stated for the record that Gibbons appeared to be competent when the plea agreement was accepted by the court, and the trial court s first conclusion of law records the judge s finding that Gibbons waiver of appeal was a knowing and voluntary decision.

Despite Gibbons pro se status, he is required to comply with the rules of appellate procedure in the same manner as any other attorney seeking appellate review of alleged trial court error. See Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988); In re Caldwell, 918 S.W.2d 9, 10 (Tex. App. Amarillo 1995, no writ). This court may only review specific points of error which are adequately briefed and supported by argument, authority, and the record. Kindley v. State, 879 S.W.2d 261, 264 (Tex. App. Houston [14th Dist.] 1994, no pet.); see Tex. R. App. P. 74(f). In this case Gibbons has completely failed to raise or brief his contention that he did not voluntarily sign a waiver of appeal. Based on Gibbons failure to raise this point and after considering the evidence in the record supporting the voluntariness of this waiver, we hold that Gibbons waiver of his right to appeal was a knowing, voluntary decision. Moreover, there is no evidence in the record that the trial court granted Gibbons permission to appeal. Thus, we will not reach Gibbons points of error asserting violations of Batson // , violations of his right to a fair and impartial jury, or the admission of his allegedly involuntary confession. Gibbons is bound by his voluntary decision to waive his appeal when the trial court has not granted its permission to appeal. See Hill, 929 S.W.2d at 609.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 13, 1997.

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