Kim Bruce Mathis v. State

Dismissed and Memorandum Opinion filed February 9, 2012.

In The

Fourteenth Court of Appeals
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NO. 14-11-01058-CR
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KIM BRUCE MATHIS, Appellant

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1302752

MEMORANDUM OPINION

Appellant was convicted by a jury of possession of cocaine in this cause, which is
cause number 1302752, and sentenced to seven years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice. In accordance with the terms of a
plea bargain agreement with the State, in a theft case, cause number 1302149, appellant
agreed to enter a plea of guilty in exchange for six months in State Jail, one year of food
stamp disqualification, and waiver of his right to appeal in this case. The trial court
sentenced appellant in cause number 1302149 in accordance with the plea bargain.
Appellant filed a pro se notice of appeal. We dismiss the appeal.

The trial court entered a certification of the defendant’s right to appeal in which the
court certified that the defendant waived the right of appeal. See Tex. R. App. P.
25.2(a)(2). The trial court’s certification was included in a supplemental record filed in
this appeal. Appellant, however, refused to sign the certification. On January 23, 2012,
the trial court held a hearing at which appellant, appellant’s trial attorney, and the State’s
attorney were present. At the hearing, the trial court admitted into evidence a copy of the
plea papers in the theft case, and a transcript of the plea hearing on that case. The plea
papers reflect that appellant entered a plea of guilty, and the prosecutor would recommend
that his punishment be set at six months in State Jail, and one year’s food stamp
disqualification. The plea also stated, “Defendant give[s] up right to appeal in cause no.
1302752 as part of this plea bargain.” Appellant signed these plea papers on October 14,
2011, four days after the sentence was imposed in the drug case.

At the plea hearing in the theft case, the following colloquy occurred:

THE COURT: State’s recommending six months in the State jail, one year food
stamps, that disqualification and that you also give up your right to appeal in
Cause No. 1302752 as part of this plea agreement. Is that the State’s
recommendation?
MR. AZZO [prosecutor]: Your Honor, it is. In addition to that, the State has
agreed not to file perjury charges against Mr. Mathis as a result of his testimony
in trial that began last Wednesday, ended this past Monday in Cause No.
1302752.
THE COURT: Is that your understanding of the agreement, Mr. Carter?
MR. CARTER [defense attorney]: That’s my understanding Your Honor, as well
as my client’s with the addition also understanding six months is to run
concurrent with the time given by the Court with regards to the trial case.
THE COURT: Is that what you’re agreeing to, Mr. Mathis?
THE DEFENDANT: Yes, ma’am.

2
THE COURT: Specifically as part of this plea agreement are you giving up your
right to appeal in Cause No. 1302752?
THE DEFENDANT: Yes, ma’am.
THE COURT: And you understand in addition to what’s written in the plea
papers, State has also agreed not to file an aggravated perjury charge. Is that part
of your agreement that you entered into with the State?
THE DEFENDANT: Yes, ma’am, I did.
The record supports the trial court’s certification that appellant knowingly and
voluntarily waived his right to appeal. See Dears v. State, 154 S.W.3d 610, 615 (Tex.
Crim. App. 2005); Smith v. State, 858 S.W.2d 609, 612 (Tex. App.—Amarillo 1993, pet.
ref’d) (holding that plea bargain agreement in one case to waive appeal in another was
valid if made knowingly and voluntarily).

Accordingly, we dismiss the appeal.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b)