David Roger Smith v. The State of Texas--Appeal from 182nd District Court of Harris County

Opinion issued April 6, 2006

In The

Court of Appeals

For The

First District of Texas

___________

NOS. 01-05-00774-CR

01-05-00853-CR

____________

ROGER SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause Nos. 1015199 and 1017929

MEMORANDUM OPINION

Appellant, David Roger Smith, pleaded guilty to two separate offenses of burglary of a building with intent to commit theft and pleaded true to the allegations in two enhancement paragraphs that he had two prior felony convictions. In accordance with his plea bargain agreements with the State, the trial court sentenced appellant to confinement for three years in each case. We dismiss for lack of jurisdiction.

Appellant entered his pleas on July 22, 2005. Appellant signed under oath a written waiver of constitutional rights, agreement to stipulate to evidence, and judicial confession in each case. The documents provided, among other things, as follows:

I intend to enter a plea of guilty and the prosecutor will recommend that my punishment should be set at three years TDC and I agree to that recommendation. . . . Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor.

Each document was also signed by appellant s counsel, the prosecutor and the trial court.

The trial court proceeded in each case to find appellant guilty of burglary of building with intent to commit theft and, following the plea agreements, assessed punishment at confinement for three years. Despite having waived the right to appeal, appellant filed pro se notices of appeal. The trial court s certification of appellant s right of appeal in each case states that appellant waived the right of appeal.

There is nothing in the record indicating that appellant s waivers of his right to appeal were not voluntarily, knowingly, and intelligently made. There is also nothing indicating that the trial court gave her consent for an appeal. In fact, the contrary is true. The trial court s judgments are stamped, Appeal waived. No permission to appeal granted.

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 Chief Justice Radack, and Justices Alcala and Bland.

Do not publish.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