Omar Flores Huerta v. The State of Texas--Appeal from 180th District Court of Harris County

Opinion issued July 12, 2007

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-07-00448-CR

____________

OMAR FLORES HUERTA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1070796

MEMORANDUM OPINION

Appellant, Omar Flores Huerta, pleaded guilty to the offense of sexual assault of a child. Appellant signed under oath a written waiver of constitutional rights, agreement to stipulate to evidence, and judicial confession. The document 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 8 years Texas Department of Corrections 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.

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

The trial court proceeded to find appellant guilty of sexual assault of a child and, following the plea agreement, assessed punishment at 8 years. Despite having waived the right to appeal, appellant filed a pro se notice of appeal. The trial court's certification of appellant's right of appeal states that appellant waived the right 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 his consent for an appeal. In fact, the contrary is true. The trial court's judgment is 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 Justices Nuchia, Hanks, and Bland.

Do not publish.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