Herbert Christopher Wallace v. The State of Texas--Appeal from 23rd District Court of Brazoria County

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00776-CR

____________

HEBERT CHRISTOPHER WALLACE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 49479

MEMORANDUM OPINION

Appellant, Herbert Christopher Wallace, pleaded guilty to the offense of unauthorized use of a motor vehicle and pleaded true to one enhancement paragraph with an agreed punishment recommendation with the State. At the time appellant entered his plea on August 7, 2006, he signed under oath documents included in a plea packet that provided, among other things, as follows:

I understand that in the event I am convicted I have the legal right to appeal...I waive the right to appeal. I understand the admonitions, statements and waivers set forth above and I am aware of the consequences of my plea.

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

The trial court proceeded to find appellant guilty of unauthorized use of a motor vehicle and, following the plea agreements, assessed punishment at confinement for 10 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. Appellant and his counsel signed the trial court s certification acknowledging that they had received a copy.

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 its consent for an appeal. In fact, the contrary is true. The trial court s docket sheet contains the entry, Defendant denied right to appeal. The clerk s record also contains a letter, file-marked September 12, 2006, that states: I would like to withdraw my case number 49479. . . Judge Patrick Sebesta has denied the appeal last week and I wish not to take it any further.

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 Taft, Jennings, and Alcala.

Do not publish.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