Jose Oswaldo Berry v. State

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Opinion issued February 13, 2003













In The

Court of Appeals

For The

First District of Texas

____________



NO. 01-03-00043-CR

____________



JOSE OSWALDO BERRY, Appellant



V.



THE STATE OF TEXAS, Appellee



On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 927888



MEMORANDUM OPINION

On November 12, 2002, appellant pleaded guilty to theft from person. Appellant signed under oath a written waiver of constitutional rights, agreement to stipulate to evidence, and judicial confession. The document provided, among other things, as follows:

I intend to enter a plea of guilty and the prosecutor will recommend that my punishment should be set at 1 year state jail concurrent with [a misdemeanor possession of marihuana case pending in Harris County Criminal Court at Law No. 8] and I agree to that recommendation. . . . Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor.



The document included a signed statement of appellant's counsel that read, in part:

I represent the defendant in this case and I believe that this document was executed by him knowingly and voluntarily and after I fully discussed it and its consequences with him. I believe that he is competent to stand trial. I agree to the prosecutor's recommendation as to punishment.



The document was also signed by the prosecutor and the trial judge.

The trial court proceeded to find appellant guilty of theft from person and, following the plea agreement, assessed punishment at confinement in state jail for one year to be served concurrently with the misdemeanor possession of marihuana case pending in Harris County Criminal Court at Law No. 8. Despite having waived the right to appeal, appellant filed a pro se notice of appeal. We hold the appeal must be dismissed.

In Buck v. State, 45 S.W.3d 275, 278 (Tex. App.--Houston [1st Dist.] 2001, no pet.), this Court held that, in a plea-bargained case in which the trial court followed the plea bargain agreement, a pre-sentencing waiver of the right to appeal conditioned on the trial court's acceptance of the plea bargain agreement was valid and enforceable. See also Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000); Bushnell v. State, 975 S.W.2d 641, 642-44 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd); Littleton v. State, 33 S.W.3d 41 (Tex. App.--Texarkana 2000, pet. ref'd); but see Alzarka v. State, 90 S.W.3d 321 (Tex. Crim. App. 2002). (1)

Appellant waived under oath any right to appeal as part of his plea bargain agreement if the punishment assessed by the trial court did not exceed the agreement. According to the statement of appellant's counsel, appellant executed the waiver of constitutional rights, agreement to stipulate to evidence, and judicial confession only after counsel had fully discussed it and its consequences with him. The trial judge followed the plea bargain agreement in assessing punishment.

Accordingly, we order the appeal dismissed.

PER CURIAM

Panel consists of Chief Justice Radack, and Justices Nuchia and Hanks.



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

1. In

Alzarka, the Texas Court of Criminal Appeals did not enforce the waiver of the right to appeal. In that case, as in the present one, the plea papers included a waiver of the right to appeal. Unlike the present case, however, the record in Alzarka was clear that the trial court had granted permission to appeal an adverse ruling on a pretrial motion to suppress. In the present case, the trial court granted the only pretrial written motion filed by appellant, and the trial court's judgment is stamped, "Appeal waived. No permission to appeal granted." There is no reporter's record of the plea hearing because the presence of a court reporter was waived. For these reasons, this appeal is not controlled by Alzarka.