No. 01-09-00479-CR
June 18, 2009 DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 1180030.
Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.
PER CURIAM.
MEMORANDUM OPINION We lack jurisdiction to hear this appeal. Appellant, Lionel James Abraham, pleaded guilty to the second degree felony offense of possession of a controlled substance. He also pleaded true to the allegation in one enhancement paragraph that he had previously been convicted of a felony offense. In accordance with his plea bargain agreement with the State, the trial
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court sentenced appellant to confinement for 10 years. Along with the plea, appellant, appellant's counsel, and the State signed a stipulation of evidence which included, among others, the following statements: "I intend to enter a plea of guilty and understand that the prosecutor will recommend that my punishment should be set at 10 years TDC-ID; I agree to that recommendation . . . Further, I waive my right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor." In addition, appellant signed a document styled "advice of defendant's right to appeal" that included the following admonition "The Court, pursuant to Tex. R. App. P. 25.2, advises the Defendant as follows: (2) If you pled guilty of no contest and accepted the punishment recommended by the prosecutor, however, you cannot appeal your conviction unless this Court gives you permission. If you waived or gave up your right to appeal, you cannot appeal your conviction." The advice of defendant's right to appeal form was sworn to by appellant and is also signed by the trial court judge. The trial court's judgment is stamped, "Appeal waived. No permission to appeal granted." After the trial court sentenced appellant to the punishment that fell within the terms of the plea bargain agreement, the trial court certified that this case is a plea- bargain case and the defendant has no right to appeal. Appellant did not request the trial court's permission to appeal any pre-trial matters, and the trial court did not give permission for appellant to appeal. Appellant filed a timely pro se notice of appeal. We conclude that the certification of the right of appeal filed by the trial court is supported by the record and that appellant has no right of appeal due to the agreed plea bargain. Tex. R. App. P. 25.2(a). We also note that appellant has waived his right to appeal. In Ex parte Delaney, 207 S.W.3d 794, 799 (Tex.Crim.App. 2006), the Texas Court of Criminal Appeals addressed the issue of pretrial waivers of appeal as follows: "[I]n order for a pretrial or presentencing waiver of the right to appeal to be binding at the punishment phase of trial, the waiver must be voluntary, knowing, and intelligent. One way to indicate that the waiver was knowing and intelligent is for the actual punishment or maximum punishment to have been determined by a plea agreement when the waiver was made. However, simply knowing the range of punishment for the offense is not enough to make the consequences of a waiver known with certainty, because it still does not allay the concern that unanticipated errors may occur at the punishment phase of trial." Here, appellant's waiver of the right to appeal was made in conjunction with an agreement with the State as to punishment that was followed by the trial court. Thus, under Delaney, appellant's waiver is valid. See id. Because appellant has no right of appeal, we must dismiss this appeal "without further action." Chavez v. State, 183 S.W.3d 675, 680 (Tex.Crim.App. 2006). Accordingly, we dismiss the appeal for lack of jurisdiction. We deny pending motions as moot.