Sanchez, Juan Antonio v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00026-CR

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JUAN ANTONIO SANCHEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 263rd Judicial District Court

Harris County, Texas

Trial Court No. 1004427

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

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Juan Antonio Sanchez was convicted in the 263rd Judicial District Court of Harris County, Texas, of the offense of indecency with a child. Pursuant to a negotiated plea agreement, which was followed by the court, Sanchez pled guilty to a second-degree felony. Sanchez was sentenced to eight years' imprisonment, as provided by the negotiated plea agreement. He was represented by appointed counsel.

            Sanchez filed a notice of appeal pro se which states that the "punishment assessed does in fact exceed that recommended by the prosecutor" and that he was "ineffectively represented by his [c]ourt appointed attorney." The notice of appeal does not allege that the appeal concerns only matters which were raised by a written motion that was filed and ruled on before trial. Further, the record contains no pretrial motion from which Sanchez could appeal. In addition, the trial court certified that Sanchez has no right to appeal. See Tex. R. App. P. 25.2(d).

            There is nothing in this record to show that the trial court granted permission to appeal, and the judgment itself contains a stamped notation that reads, "Appeal waived. No permission to appeal granted." This notation is explicitly supported by the negotiated plea agreement itself, in which Sanchez signed a statement that, if the plea bargain was kept, he agreed to waive his right of appeal. That negotiated plea agreement, which incorporates the waiver, is signed by Sanchez, his attorney, the district clerk, the assistant district attorney, and the presiding judge. A criminal defendant may waive many rights, including the right to appeal a conviction. Blanco v. State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000). That waiver is binding on the defendant and prevents the appeal of any issue in the case without the consent of the court. Id. Sanchez agreed, with the concurrence of counsel, to plead guilty and to waive his right to appeal. We will hold him to his agreement. See id.

            Sanchez alleges the sentence assessed exceeds the negotiated plea agreement. The record reflects he was sentenced in accordance with the negotiated plea agreement. Sanchez agreed to a sentence of eight years and was sentenced to eight years' imprisonment. A negotiated plea agreement by its nature incorporates a voluntary and understanding plea of guilty, and thus its process can only be triggered when the negotiated plea agreement and guilty plea are voluntarily and understandably made. However, the Texas Court of Criminal Appeals has held that an involuntary plea may be raised by a motion for new trial and habeas corpus, but not on direct appeal. Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001).  

            Because the appeal does not concern pretrial rulings, Sanchez waived his right to appeal, and the trial court did not grant permission to appeal, Sanchez has no right to appeal. We dismiss the appeal.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          January 24, 2005

Date Decided:             January 25, 2005

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            Because the error that we have found to exist relates solely to punishment, which was assessed by the trial court, we reverse the judgment of the trial court as to the punishment and remand this cause to the trial court to reassess appellant's punishment pursuant to Section 12.34 of the Texas Penal Code, which provides for the range of punishment that may be assessed for an individual found guilty of a third-degree felony. See Tex. Pen. Code Ann. § 12.34.  

            We affirm the judgment as to all other matters.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          March 12, 2004

Date Decided:             March 18, 2004

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