Opinion
NO. 14-18-00066-CR
04-19-2018
TYLER WELTON SMITH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 426th District Court Bell County, Texas
Trial Court Cause No. 77497
MEMORANDUM OPINION
Appellant entered a guilty plea to possession of a controlled substance. Appellant was sentenced to confinement for twelve months in the State Jail Division of the Texas Department of Criminal Justice. Appellant filed a timely notice of appeal. Subsequently, appellant filed a motion for new trial which was granted as to sentencing. Appellant was resentenced to two years' confinement in the State Jail Division of the Texas Department of Criminal Justice. Appellant's sentence of confinement was suspended and he was placed on community supervision for five years. Appellant's appointed counsel filed a motion to dismiss this appeal for lack of jurisdiction.
At the resentencing hearing, the trial court judge told appellant "I'm going to sentence you to two years in state jail probated for five years, order you to pay all court costs, any court appointed lawyer fees. And the terms and conditions of probation, [appellant], are as follows." The trial court judge then explained the terms and conditions of appellant's probation to him. After the terms and conditions were detailed, the following exchange took place:
THE COURT: All right. Now, do you wish to accept the sentence of the Court and waive appeal?
[APPELLANT]: Yes.
THE COURT: You agree?
[APPELLANT'S TRIAL COUNSEL]: Yes, Your Honor.
The trial court entered a certification of the defendant's right to appeal in which the court certified that appellant waived his right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court's certification is included in the record on appeal. See Tex. R. App. P. 25.2(d).
Non-negotiated waivers of the right to appeal are valid only if the defendant waived the right of appeal, knowing with certainty the punishment that would be assessed. See Washington v. State, 363 S.W.3d 589, 589-90 (Tex. Crim. App. 2012); Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003). The record shows that appellant orally waived his right to appeal after the trial court imposed his sentence at the resentencing hearing. Appellant's waiver reflects that he waived the right of appeal knowing with certainty the punishment that would be assessed. See Blanco v. State, 18 S.W.3d 218, 219 (Tex. Crim. App. 2000) (holding waiver of right to appeal is valid if appellant knows with certainty the punishment that will be assessed); Moreno v. State, 327 S.W.3d 267, 268 (Tex. App.—San Antonio 2010, no pet.) (enforcing post-sentencing waiver of appeal made in open court). The record supports the trial court's certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
Accordingly, we grant appellant's motion and dismiss the appeal.
PER CURIAM Panel consists of Justices Busby, Brown, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).