Adrian Maynard Lister v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00064-CR

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ADRIAN MAYNARD LISTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31041-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

A Gregg County grand jury indicted Adrian Maynard Lister for aggravated robbery, to which he pled not guilty. A jury found him guilty of aggravated robbery and assessed punishment at twenty years' confinement and a $5,000.00 fine. On May 18, 2004, the trial court rendered judgment in accordance with the jury's verdict. Later that same day, Lister and his attorney signed a waiver of Lister's right to move for a new trial and of his right of appeal. The trial court's certification reflects Lister's waiver of this right. However, May 28, 2004, Lister filed a notice of appeal pro se. In this notice of appeal, he attempts to "withdraw" his waiver because he was "confused" about his rights at the time.

Trial Court's Certification of Right of Appeal

In criminal cases, the trial court must 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. Tex. R. App. P. 25.2(a)(2). Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal. See Tex. R. App. P. 25.2(d); Threadgill v. State, 120 S.W.3d 871, 872 73 (Tex. App. Houston [1st Dist.] 2003, no pet.).

Waiver of Right of Appeal

The record confirms the trial court's certification. A valid waiver of appeal, one made voluntarily, knowingly, and intelligently, will prevent a defendant from appealing without the trial court's permission. Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003). The Texas Court of Criminal Appeals has long held that a non-plea-bargaining defendant can make a valid waiver of the right of appeal so long as it is done after the trial court has completed sentencing. See Blanco v. State, 18 S.W.3d 218, 219 20 (Tex. Crim. App. 2000); Ex parte Tabor, 565 S.W.2d 945, 945 46 (Tex. Crim. App. 1978). // The state need not receive some benefit before the waiver of the right to appeal is binding on a defendant. See Monreal, 99 S.W.3d at 624 (Johnson, J., concurring). Where a valid waiver exists, regardless of whether there was a plea agreement with the state, a defendant who wishes to appeal must either receive the permission of the trial court or prove to the court of appeals that the waiver was coerced or involuntary. See Tabor, 565 S.W.2d at 946; Hurd v. State, 548 S.W.2d 388, 389 90 (Tex. Crim. App. 1977); Bouchillon v. State, 540 S.W.2d 319, 321 (Tex. Crim. App. 1976).

The record shows that Lister signed the waiver voluntarily, knowingly, and intelligently. It does not prove to this Court that the waiver was involuntary or coerced and does not show that the trial court gave Lister permission to appeal. On May 18, the trial court sentenced Lister in accordance with the jury's recommendation delivered at 3:33 p.m. The trial court explained Lister's right of appeal and the consequences of his waiver of that right. Then, Lister, his attorney, and the trial court signed the waiver wherein Lister acknowledged he had been "fully informed by his attorney and by the Judge . . . that he [had] the legal right of appeal" and was "fully aware of all of his statutory and constitutional rights." From the record, it appears Lister voluntarily, knowingly, and intelligently signed the nonnegotiated waiver after the trial court imposed sentence. We do not find in the record where the trial court granted Lister permission to withdraw such a waiver. The most recent statement of Lister's right of appeal is the trial court's certification of his right of appeal which, again, reflects the waiver. The record supports the conclusion in the trial court's certification: Lister waived his right of appeal.

Conclusion

The record confirms the trial court's certification that Lister waived his right of appeal. Since the record does not contain the trial court's certification showing Lister has the right of appeal, we dismiss Lister's appeal for want of jurisdiction.

Donald R. Ross

Justice

Date Submitted: June 24, 2004

Date Decided: June 25, 2004

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