Joshua Adam Byland v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOSHUA ADAMS BYLAND

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-06-00309-CR

Appeal from the

243rd Judicial District Court

of El Paso County, Texas

(TC# 20060D01524)

MEMORANDUM OPINION

Appellant Joshua Adams Byland attempts to appeal a conviction for intoxication manslaughter. Appellant pled guilty to the offense and, in accordance with his plea agreement, the trial court sentenced Appellant to 3 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Finding that Appellant has executed a valid waiver of the right of appeal and the trial court has not granted permission to appeal, we dismiss the appeal.

Rule 25.2(a)(2) governs the defendant s right to appeal in a criminal case:

A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant s right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case--that is, a case in which defendant s plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant--a defendant may appeal only:

(A)those matters that were raised by written motion filed and ruled on before trial, or

(B)after getting the trial court s permission to appeal.

Tex.R.App.P. 25.2(a)(2).

Article 44.02 of the Texas Code of Criminal Procedure provides:

A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.

Tex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1979).

Appellant filed a notice of appeal on November 9, 2006, intending to appeal the trial court s ruling on a pretrial motion to dismiss. On November 14, 2006, the Clerk s Office notified Appellant that the trial court has indicated in the court s certification that this is a plea-bargain case and Appellant has no right of appeal in this case and requested a response. By letter brief dated November 17, 2006, Appellant urges to the Court that he should be entitled to an appeal because the plea papers he signed were confusing and contradictory, thus his waiver of the right to appeal was not made knowingly and voluntarily.

A criminal defendant may waive any of the rights secured him by law, including the right to appeal. Tex.Code Crim.Proc.Ann. art. 1.14(a)(Vernon 2005); Perez v. State, 885 S.W.2d 568, 570 (Tex.App.--El Paso 1994, no pet.). A waiver of the right to appeal that was made voluntarily, knowingly, and intelligently is valid and will prevent a defendant from appealing without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 617 (Tex.Crim.App. 2003); Ex parte Tabor, 565 S.W.2d 945, 946 (Tex.Crim.App. 1978). No attack on the waiver of the right to appeal will be entertained in the absence of factual allegations supporting the claim that the waiver was coerced or involuntary. Tabor, 565 S.W.2d at 946; Perez, 885 S.W.2d at 570. Merely filing a notice of appeal is not sufficient to overcome the prior waiver of appeal. Perez, 885 S.W.2d at 570.

Here, Appellant signed a document entitled, Court s Notice to Defendant of Rights, Written Admonishments, Waiver of Rights, Judicial Confession, and Plea Agreement. In the section of the admonishments pertaining to the recommendation for punishment, the document states:

If you have entered into a plea agreement with the attorney representing the State of Texas, and the Court elects not to follow that agreement by sentencing you in excess of that agreement, you will be permitted to withdraw your plea of guilty.

If, however, the punishment assessed by the Court in this case does not exceed the punishment recommended by the attorney representing the State of Texas and agreed to by you, the defendant, and your attorney, the Court must give you permission before you may prosecute an appeal on any matter in the case except for those matters raised by written motion filed and heard prior to trial.

I, the undersigned defendant, acknowledge I have read this page and understand its content.

Appellant s signature appears at the bottom of this page. Later in the same document, in a section titled, Acknowledgments and Waivers, Appellant waived his right to appeal as follows:

I, the undersigned defendant, have also been informed of my right to pursue a motion for new trial and\or appeal, and that I may waive this right, and after having consulted with my attorney, I do hereby voluntarily, knowingly and intelligently waive my right to appeal . . . .

Appellant s signature appears at the bottom of this page. Included in the plea papers is an Acknowledgment of Counsel, signed by Appellant s attorney, which states that counsel explained to Appellant all of the rights to which he is entitled, including the right to file a motion for new trial and to appeal, and that Appellant understood the admonishments and was aware of the consequences of his plea. Further, counsel certified to the trial court that Appellant had freely and voluntarily waived his rights as set forth in the plea papers and counsel joined with Appellant in the waiver of those rights. In the Court s Findings, Approval, and Order, the trial court found that Appellant understood the consequences of waiving the right to file a motion for new trial and to appeal, and that Appellant voluntarily, knowingly, and intelligently waived those rights. The trial court expressly accepted each of Appellant s waivers.

Appellant asserts that the admonishments section and acknowledgments and waivers section in the plea papers are contradictory, thus it would be difficult to argue that he gave up his right to appeal knowingly and intelligently. We disagree. The plea papers include a general admonishment advising Appellant of his limited right to appeal a plea-bargained guilty plea and, later in the same document, Appellant knowingly and voluntarily waived that right. We find nothing confusing or contradictory about the two sections of the plea papers such that the validity of the Appellant s waiver of the right to appeal could be called into question. The trial court certified that this is a plea-bargain case and that Appellant has no right to appeal. The plea papers indicate that Appellant voluntarily, knowingly, and intelligently waived his right to appeal. Because the trial court has not given Appellant permission to appeal, we dismiss the appeal.

December 14, 2006

DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)