DEUNDRAY KENYA MASON, Appellant v. THE STATE OF TEXAS, Appellee

DISMISS and Opinion Filed November 6, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00105-CR
No. 05-07-00106-CR
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DEUNDRAY KENYA MASON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 219-80865-06 and 219-80866-06
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MEMORANDUM OPINION
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Richter
        These cases present the question of whether a defendant may appeal his conviction despite orally waiving his right of appeal in conjunction with a sentencing agreement. We conclude he may not and dismiss the appeals.
Background
        On October 31, 2006, the trial court convicted Deundray Kenya Mason of possession of marijuana in an amount of five pounds or less but more than four ounces (appellate cause no. 05-07- 00105-CR) and possession of methamphetamine in an amount of four grams or more but less than 200 grams (appellate cause no. 05-07-00106-CR). See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.112(d), 481.121(a),(b)(3) (Vernon 2003 & Supp. 2006). Six weeks later, at the sentencing hearing, Mason's counsel announced Mason and the prosecutor had agreed to five years incarceration in the methamphetamine case and two years incarceration in the marijuana case. Mason's counsel announced further that Mason had also agreed to waive appeal. The trial court confirmed the details of the agreement with Mason and the prosecutor and sentenced Mason in accordance with the agreement. No separate permission to appeal was given. Although the judgment in each case reflects the pronounced sentence and the waiver of appeal, Mason nevertheless timely filed a notice of appeal in each case and the trial court filed its required “certification of right to appeal” stating Mason could appeal each conviction because “there was no negotiated plea.” See Tex. R. App. P. 25.2(d) (requiring trial court to certify whether a defendant has the right to appeal). Mason then filed his brief acknowledging, in a footnote, his agreement with the State but “deeming” it non-binding because (i) he “did not sign any plea agreement,” (ii) the trial court did not “establish [the waiver] was knowing and voluntary,” and (iii) the trial court certified he could appeal. The State responded in its brief urging Mason be held to the agreement and the appeals be dismissed.
Discussion
        It is well-settled that a defendant may waive his right of appeal. Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003). The waiver may be oral or written but to be binding, it must be knowingly, intelligently, and voluntarily made. Id.; Delatorre v. State, 957 S.W.2d 145, 149 (Tex. App.-Austin 1997, pet. ref'd). When, as here, a defendant waives his right of appeal as part of an agreement on sentencing and the trial court follows the terms of the agreement, the waiver is knowingly, intelligently, and voluntarily made. See Ex parte Delaney, 207 S.W.3d 794, 798 (Tex. Crim. App. 2006); Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000). When a defendant knowingly, intelligently, and voluntarily waives appeal, he may not appeal unless the trial court grants permission. Monreal, 99 S.W.3d at 617. A trial court's certification of appeal pursuant to rule of appellate procedure 25.2 that a defendant is entitled to appeal must be supported by the record. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005); Barcenas v. State, 137 S.W.3d 865, 866 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (per curiam).
        Here, although the trial court certified Mason could appeal because “there was no negotiated plea,” the record reflects otherwise. As stated, Mason confirmed on the record that he and the prosecutor had reached an agreement on punishment and that he waived his right of appeal. The record also reflects he was sentenced in accordance with the agreement. Thus, Mason's waiver was knowingly, intelligently, and voluntarily made. Delaney, 207 S.W.3d at 798; Blanco, 18 S.W.3d at 219. That his waiver was oral and not written is of no consequence. Delatorre, 957 S.W.2d at 149. Because Mason's waiver was knowingly, intelligently, and voluntarily made, Mason could not appeal without the trial court's permission. Monreal, 99 S.W.3d at 617. Because no permission was given, we agree with the State that Mason is bound to his waiver and the appeals should be dismissed. Accordingly, we dismiss the appeals.
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070105F.U05