Baltazar, Gabino Medrano v. State ( 2002 )

                                                            COURT OF APPEALS

                                                    EIGHTH DISTRICT OF TEXAS

                                                               EL PASO, TEXAS

GABINO MEDRANO BALTAZAR, III,              )

                                                                              )     No.  08-02-00106-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     143rd District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Ward County, Texas

Appellee.                           )

                                                                              )     (TC# 98-01-04022-CRW)

                                                                              )

O P I N I O N

Gabino Medrano Baltazar appeals his conviction for the offense of arson, a second degree felony. 

FACTUAL SUMMARY

On March 27, 1998, Appellant waived his right to a jury trial and entered a negotiated plea of guilty to the offense of arson.  As part of the plea bargain, Appellant waived his right to appeal.  In accordance with the plea bargain, the trial court deferred entering a finding of guilt and placed Appellant on community supervision for ten years.  In February 2002, the trial court found that Appellant had violated the terms and conditions of his community supervision, adjudicated Appellant=s guilt, and assessed punishment at imprisonment for a term of twelve years. We dismiss for want of jurisdiction.

FRIVOLOUS APPEAL

Appellant=s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, reh. denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S. Ct. 2094 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).  A copy of counsel=s brief has been delivered to Appellant, and Appellant has been advised of his right to examine the appellate record and file a pro se brief.  No pro se brief has been filed.

The record reflects that Appellant was admonished of the consequences of his guilty plea pursuant to Article 26.13 of the Texas Code of Criminal Procedure.  Appellant made a judicial confession admitting his guilt.  Furthermore, as noted by appellate counsel, Appellant waived his right to appeal at the conclusion of the plea proceeding.  We agree with counsel=s conclusion that the appeal is frivolous but Appellant=s waiver of the right to appeal requires us to dismiss this appeal rather than affirm Appellant=s conviction.

It is well established that a criminal defendant may waive any of the rights secured him by law, including the right to appeal.  Tex.Code Crim.Proc.Ann. art. 1.14(a)(Vernon Supp. 2002); Perez v. State, 885 S.W.2d 568, 570 (Tex.App.‑-El Paso 1994, no pet.). A knowing and intelligent waiver of the right to appeal operates to prevent a defendant from appealing without the consent of the trial court.  Ex parte Tabor, 565 S.W.2d 945, 946 (Tex.Crim.App. 1978); Smith v. State, 858 S.W.2d 609, 611 (Tex.App.‑‑Amarillo 1993, pet. ref=d).  No attack on the waiver of the right to appeal will be entertained in the absence of factual allegations supporting the claim that the waiver was coerced or involuntary.  Tabor, 565 S.W.2d at 946; Perez, 885 S.W.2d at 570.  Merely filing a notice of appeal is not sufficient to overcome the prior waiver of appeal.  Tabor, 565 S.W.2d at 946; Perez, 885 S.W.2d at 570.  The trial court has not granted permission to appeal and there is nothing in the record indicating that Appellant=s waiver is involuntary.  To the contrary, the evidence before us shows that Appellant, after being advised by the trial court and counsel, knowingly and voluntarily waived his right to appeal.  Because the record does not reflect that Appellant has appealed with the permission of the trial court, we have no authority to review any points of error he might have raised on appeal.  See Tabor, 565 S.W.2d at 946; Perez, 885 S.W.2d at 571; Smith, 858 S.W.2d at 613.  Accordingly, this appeal is dismissed for want of jurisdiction.

November 7, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)