IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 11, 2005
______________________________JOHNNY REYES, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. A15099-0308; HON. ED SELF, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Appellant Johnny Reyes, Jr. appeals his conviction for theft. Through four issues, he contends that 1) he did not knowingly and intelligently waive his right of appeal, 2) the jury was improperly instructed, 3) he received ineffective assistance of counsel, and 4) the evidence was legally and factually insufficient to sustain his conviction. We dismiss the appeal.
The certification of right to appeal signed by the trial court states that appellant "waived the right to appeal." Given this, we are obligated to dismiss the cause unless the record before us illustrates that the certification is defective. Dears v. State, 154 S.W.3d 610, 613-14 (Tex. Crim. App. 2005). It does not.
After being found guilty of theft, appellant waived his request to have the jury assess punishment. Instead, he wanted the trial court to determine his sentence. Furthermore, both the State and appellant agreed to propose a sentence to the court as part of an agreement. Through the latter, appellant would accept a term of confinement for two years in a state jail facility. In return, the State would dismiss a particular misdemeanor charge pending against him and forego prosecution for various other acts performed by appellant. Questions posed to appellant by both his counsel and the State revealed that he understood and accepted the terms of the bargain. Thereafter, the trial court inquired about whether he also understood that as part of the agreement appellant would also provide restitution of $4000 and "waive . . . any right to appeal that [appellant] has." Further questioning of appellant by his attorney about these two matters illustrated that he understood and agreed to them as well. Given this response, the trial court sentenced appellant in accordance with the terms discussed.
The Court of Criminal Appeals has held that a defendant may legitimately waive his right to appeal when the defendant knows of the potential sentence to be assessed before executing the waiver. Monreal v. State, 99 S.W.3d 615, 618 (Tex. Crim. App. 2003); Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000). And, before us is evidence illustrating that appellant knew of the sentence to which he was exposed when he agreed to waive his right to appeal. So, because the record illustrates that the waiver was and is valid under Monreal and Blanco, the trial court's certification is not defective. Thus, we must dismiss this cause given that appellant relinquished his right to appeal, as evinced by the court's certification. (1)
The appeal is dismissed pursuant to Texas Rule of Appellate Procedure 25.2.
Brian Quinn
Chief Justice
Do not publish.
1. Again, appellant attacks the validity of the waiver through his first issue. Yet, the same evidence
used to show that the certificate of appeal was not defective also provides ample basis upon which the trial
court could have reasonably found the waiver to be knowing, intelligent, and voluntary. So by dismissing the
appeal we also overrule appellant's first issue.
ty, appellant contends that the trial court erred in declining to submit an instruction that
Our law provides no act done by accident is an offense. Therefore, if you believe that the defendant committed the act alleged but you further believe that such act was caused by accident, or if you have a reasonable doubt thereof, you shall find the defendant not guilty.
The current penal code does not recognize the defense of accident. However, the former defense is now within the requirement of section 6.01(a), that "a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." Tex. Pen. Code Ann. § 6.01 (Vernon 1994); Williams v. State, 630 S.W.2d 640, 644 (Tex.Cr.App.1982). Because there is no defense of accident in the present penal code, the trial court did not err in declining to submit the instruction.
Moreover, appellant argues that because one witness testified he told her after the murder that "the car jerked and the gun went off" that such evidence raised the issue of voluntariness, and he was therefore entitled to the requested instruction. However, although Brown v. State, 955 S.W.2d 276, 279 (Tex.Cr.App. 1997), held that defendant was entitled to an instruction regarding an involuntary act, unlike appellant's testimony here, the defendant testified at trial that the handgun in his possession accidentally discharged after he was bumped from behind and his testimony was corroborated by another witness. Also, in Butler v. State, 981 S.W.2d 849, 856 (Tex.App.--Houston, [1st Dist.] 1998, pet. ref'd), the court held that the trial court should have submitted an instruction on the voluntariness of appellant's conduct; however, there too, the defendant testified that the shotgun fired during a struggle for possession of the shotgun. Further, conduct is not rendered involuntary merely because an accused does not intend the result of his conduct. George v. State, 681 S.W.2d 43, 45 (Tex.Cr.App. 1984). These cases do not authorize an instruction as to voluntariness where, as here, appellant testified that he was not in the car at the time of the shooting and never possessed a pistol which was contrary to the testimony of his co-defendant. See also Joiner v. State, 727 S.W.2d 534, 537 (Tex.Cr.App. 1987) (holding that testimony that the defendant stated "it was an accident" after he shot the victim did not raise the issue of the voluntariness of his conduct.) Appellant's sole point of error is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. Tex. R. App. P. 47.1.