Son Geno Clark v. State ( 2005 )

Opinion issued October 13, 2005

    In The

Court of Appeals

For The  

First District of Texas

---

NO. 01-04-00972-CR

---

SON GENO CLARK, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 03CR3197

---

MEMORANDUM OPINION

          A jury convicted appellant, Son Geno Clark, of murder, and the trial court sentenced him to 50 years’ confinement. After sentencing, appellant waived his right to appeal.

          In three issues, appellant contends that he did not knowingly, intelligently, and voluntarily waive his right to appeal and challenges the legal and factual sufficiency of his conviction.

          We dismiss.

BACKGROUND

          Appellant was convicted of murdering Jonathan Lemons by shooting him with a handgun on the steps of an apartment complex in Galveston. After sentencing, on June 17, 2004, the record reflects the following dialogue:

          THE COURT:                 Now, [appellant], I want to advise you that you have the right of appeal in this case as this was not a plea bargain case and I’m advising you that you have the right of appeal in this case. [sic] I’ve been handed a trial certification in which you are waiving your right of appeal; is that correct?

          [Appellant]:                     Yes.

          THE COURT:                 All right. You understand that you have the right of appeal?

          [Appellant]:                     Yes, sir.

          THE COURT:                 And you talked about that with both attorneys?

          [Appellant]:                     Yes, sir.

          THE COURT:                 And it is your, you [sic] knowingly and voluntarily are waiving your right of appeal in this case?

          [Appellant]:                     Yes, Your Honor.

          THE COURT:                 All right. With that, even though it’s not required since counsel has signed it, I still request that he [appellant] sign this waiver too. Hand it to him, [defense counsel]. Have your client sign it that that is his desire? [sic]

                                                   (Whereupon, the Defendant signed the waiver form.)

          The clerk’s record indicates that the trial court signed a Certification of Defendant’s Right of Appeal, stating that “the defendant has waived his right of appeal” and such was signed by appellant and his counsel.

          On July 16, 2004, appellant filed a pro se notice of appeal and requested appointment of counsel. Appellant’s counsel filed a motion in this Court requesting abatement of the appeal, asserting that the “trial court’s certification of appellant’s right to appeal is inconsistent with the record because it indicates that appellant waived the right to appeal.” On November 4, 2004, this Court entered an order directing the trial court to file an amended certification. In the order, this Court stated that it would “examine the entire record after the reporter’s record has been filed to determine whether it supports the certification.”

          The trial court’s Amended Certification of Defendant’s Right of Appeal states that this “is not a plea bargain case, and the defendant WAIVED the right of appeal on 6-17-04.” The State has moved to dismiss this case and this Court has ordered such motion to be taken with the case.

Waiver of right to appeal

          In his first issue, appellant contends that his “waiver of appeal was not knowing and voluntary under the circumstances.” Specifically, appellant argues that he was “laboring under the obvious shock” from hearing his sentence and that he “did not fully appreciate or understand the gravity” of waiving appeal.

          A defendant in a non-capital felony case may waive any right secured to him by law. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon 2005); Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003); Giles v. State, 53 S.W.3d 718, 719 (Tex. App.—Houston [1st Dist.] 2001, no pet.). A waiver is valid if it was made voluntarily, knowingly, and intelligently. Monreal, 99 S.W.3d at 617; Iles v. State, 127 S.W.3d 347, 349 (Tex. App.—Houston [1st Dist.] 2004, no pet.). A valid waiver of appeal, whether negotiated or non-negotiated, made after sentencing, prevents a defendant from appealing without the consent of the trial court. Monreal, 99 S.W.3d at 622.

          Here, the record reflects that appellant stated at trial that he “knowingly and voluntarily” chose to waive his right to appeal. His waiver was made after sentencing and in conjunction with admonishments by the trial court concerning his rights. In addition, both appellant and his counsel signed the certification form stating that “the defendant has waived the right of appeal.” There is nothing in the record to expressly contradict the validity of the waiver.

          Once a valid waiver is executed, appellant may not unilaterally withdraw the waiver and seek appeal. See id. at 615 (refusing to find that “a defendant can simply ignore a waiver of the right to appeal and go straight to a court of appeals without seeking the permission of the trial court”). The rules of appellate procedure provide that, in criminal cases, “[t]he trial court shall enter a certification of the defendant’s right to appeal in every case in which it enters a judgment of guilt or other appealable order.” Tex. R. App. P. 25.2(a)(2). Here, neither the reporter’s nor the clerk’s records indicate any permission to appeal by the trial court; rather, both the certification and the amended certification from the trial court state that appellant waived his right to appeal in this case.

          We hold that appellant’s waiver of the right to appeal was entered into voluntarily, knowingly, and intelligently, and that the trial court did not consent to the appeal. See Iles, 127 S.W.3d at 350.

  

CONCLUSION

          Because appellant signed a valid waiver of appeal and did not receive the trial court’s permission to appeal, we grant the State’s motion to dismiss the appeal. Tex. R. App. P. 25.2(d); 43.2(f). Having dismissed the appeal under Rule 25.2(d), we do not reach any substantive issues that appellant may have raised.

                                                                        Laura Carter Higley

                                                                        Justice

Panel consists of Justices Taft, Alcala, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).