DELFINO ZARAGOZA, JR. v. THE STATE OF TEXAS--Appeal from 28th District Court of Nueces County

NUMBER 13-04-391-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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DELFINO ZARAGOZA, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 28th District Court of Nueces County, Texas.

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MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Castillo

Memorandum Opinion Per Curiam

Appellant, Delfino Zaragoza, attempts to appeal a conviction for indecency with a child and aggravated sexual assault of a child. The trial court s certification shows that appellant has waived his right to appeal, and accordingly, we dismiss the appeal. See Tex. R. App. P. 25.2(d).

Appellant was indicted on two counts of indecency with a child and two counts of aggravated sexual assault of a child. Appellant pleaded not guilty and was tried by a jury. On April 26, 2004, the day of trial, the trial court entered a certification of appellant s right to appeal reflecting that the case was not a plea-bargain case and appellant had the right to appeal. See id. at 25.2(a)(2).

On April 30, 2004, the jury found appellant guilty of both counts of indecency and the first count of aggravated sexual assault. Appellant initially elected to have the jury assess punishment. However, following the State s opening statement, the parties conferred, and appellant instead elected to have the trial court assess punishment. According to the court s admonishments, initialed by appellant, and appellant s motion for new trial, appellant entered into a plea bargain waiving appeal after he was found guilty. According to the reporter s record of the sentencing hearing, appellant entered into an agreement with the State whereby the State would recommend that appellant be sentenced to fifteen years of imprisonment and appellant would, as part and parcel of the plea agreement, waive any and all right of appeal. The record contains a sworn written waiver of appellant s right to appeal signed by appellant and his counsel. Further, appellant signed and initialed the court s admonishments indicating that I have decided that if the Court fully accepts the plea bargain agreement in my case, I will waive or give up any right of appeal that I may have. Counsel certified that he had explained the admonishments and his waiver of rights to appellant, stating that that appellant understands that if the Court accepts the plea bargain agreement, he. . . will waive his. . . right to appeal. The trial court entered an order approving appellant s waiver of rights as voluntarily and knowingly made.

After hearing evidence and argument, the trial court assessed punishment in accordance with the agreement at fifteen years of confinement in the Institutional Division of the Texas Department of Criminal Justice.

On May 3, 2004, the trial court entered a new certification of the right to appeal, indicating that the defendant has waived the right of appeal. Appellant initialed the language on the certification form showing that he had waived the right to appeal and signed the certification. Thereafter, on May 25, 2004, appellant filed a motion for new trial, and on July 26, 2004, filed a notice of appeal.

On August 3, 2004, this Court notified appellant's counsel that the trial court's certification showed no right to appeal and ordered counsel to: (1) review the record; (2) determine whether appellant has a right to appeal; and (3) forward to this Court, by letter, counsel's findings as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the existence of any amended certification.

On September 3, 2004, counsel filed a motion to abate the appeal and to compel the trial court to amend the trial court s certification of the appellant s right to appeal. Counsel contends that appellant s waiver of the right to appeal did not preclude an appeal of the jury s finding of guilt or an appeal of motions filed and ruled on prior to trial. Counsel further argues that the State is estopped to contend that appellant has waived his rights to appeal by failing to object to appellant s motion for new trial and notice of appeal.

On September 10, 2004, the State filed a motion to dismiss and response to appellant s motion to abate. According to the State, appellant validly waived any right to appeal.

After review, we conclude that appellant has failed to establish either that the certification currently on file with this Court is incorrect or that appellant otherwise has a right to appeal. A valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court. See Tex. R. App. P. 25.2(a)(2); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003);see also Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000). Although pre-sentencing waivers of the right to appeal may be held invalid where they are not, as a matter of law, made knowingly, voluntarily, and intelligently, see Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977), a pre-sentencing waiver of the right to appeal may be valid where the appellant bargains for a sentencing recommendation in exchange for his waiver of the right to appeal, and the trial court honors the recommendation, see Blanco, 18 S.W.3d at 220. Perez v. State, 129 S.W.3d 282, 287-288 (Tex. App. Corpus Christi 2004, no pet.). In the instant case, the record is abundantly clear that appellant knew, at the time he waived his rights to appeal, the likely consequences of his waiver. Accordingly, we conclude that appellant s waiver of the right to appeal is valid.

Counsel for appellant contends that the State is estopped to dispute appellant s right to appeal because the State failed to object when appellant filed a motion for new trial and notice of appeal. Appellant cites no authority for this proposition, and we find none. Appellant executed a valid waiver of the right to appeal, and under these circumstances, the State cannot, by action or inaction, confer a right to appeal where none exists.

The Texas Rules of Appellate Procedure provide that an appeal must be dismissed if the trial court's certification does not show that the defendant has the right of appeal. Tex. R. App. P. 25.2(d); see Tex. R. App. P. 37.1, 44.3, 44.4. Accordingly, we deny appellant s motion to abate the appeal and to compel the trial court to amend the certification. We grant the State s motion to dismiss this appeal. The appeal is DISMISSED. Any other pending motions are denied as moot.

PER CURIAM

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

Memorandum Opinion delivered and filed this

the 5th day of May, 2005.