Willie Nobles v. State of Texas--Appeal from 145th District Court of Nacogdoches County

NO. 12-01-00177-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

WILLIE NOBLES,

 
APPEAL FROM THE 145TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
NACOGDOCHES COUNTY, TEXASPER CURIAM

A jury found Appellant Willie Nobles ("Appellant") guilty of theft. Prior to sentencing, Appellant and the State reached an agreement as to punishment, which included a provision that Appellant waived his right to appeal. In one issue, Appellant challenges the sufficiency of the evidence to support his conviction. We hold that Appellant's waiver of appeal is valid and dismiss the appeal.

 
Background

After a jury convicted Appellant of theft, Appellant and the State made an agreement in which Appellant waived his right to appeal in exchange for the State's promise to recommend a sentence of eighteen months of confinement in a state jail. Although Appellant had previously elected to have the jury assess punishment, he changed his election at the punishment hearing and requested that the trial court assess his sentence.

The only evidence introduced by the State at the hearing was the written plea agreement, which contains the following paragraph:

 

All parties understand that in the event that the Court rejects this agreement, the Defendant will be permitted to withdraw his plea and no statement or other evidence received during the plea may be admitted against the Defendant on the issue of guilt or punishment in any subsequent criminal proceeding. Furthermore, if the Court sets punishment at or below this recommendation, the Defendant understands that if the defendant has waived appeal, no appeal is possible and, if no waiver, no appeal is possible without the permission of the Court unless based on motion previously filed.

 

The next paragraph in the agreement was initialed by Appellant and stated, "Defendant agrees that he will waive any right to appeal in this matter and agrees that there is neither legal or factual error and further waives any right to seek a new trial."

Prior to the trial court's pronouncement of sentence, the State called the waiver and the initialed paragraph to the court's attention. Appellant's attorney informed the court that he had advised Appellant of "the consequences of those initials" and that Appellant had "agreed to that."

The trial court followed the State's sentencing recommendation, but Appellant appealed his conviction. The State requests that we uphold Appellant's waiver and dismiss his appeal. In his response to the State's request, Appellant does not challenge the validity of the waiver, but argues that it would be unjust to support a conviction for legal conduct without culpable intent.

 
Validity of Waiver

In Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977), the court of criminal appeals held that a defendant is not bound by an agreement to waive appeal that is made after conviction, but before the pronouncement of sentence. More recently, however, the court has distinguished Thomas and upheld a waiver when a defendant bargained for a sentencing recommendation from the State in exchange for a waiver of his right to appeal.

In Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000), the appellant was convicted of burglary by a jury and subsequently entered into a negotiated sentencing agreement with the State. The State made the agreed recommendation, the appellant waived his right to appeal, and the trial court followed the State's recommendation. The appellant then appealed. The court of appeals dismissed the appeal, and the court of criminal appeals affirmed. In upholding the dismissal, the court reasoned that the defendant knew at the time of the waiver what his punishment would be and what errors might have occurred during the proceedings. Therefore, his waiver was knowingly and intelligently made, and he was bound by his agreement. Id. at 220.

The facts in the case at bar cannot be distinguished from those in Blanco. Appellant was found guilty by a jury and then reached a punishment agreement with the State, which the trial court elected to follow. In the agreement, Appellant waived his right to appeal in writing, and his trial counsel confirmed that Appellant understood the consequences of the waiver.

Based upon the above facts, we find that Appellant's waiver of his right to appeal was voluntarily, knowingly, and intelligently made. Accordingly, we hold that Appellant's waiver of appeal is valid and dismiss this appeal.

 

Opinion delivered January 2, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)