In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00033-CR
EARL WAYNE MURPHY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Potter County, Texas
Trial Court No. 67,564-C, Honorable Ana Estevez, Presiding
May 7, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Earl Wayne Murphy, seeks to appeal his conviction for the offense of
theft,1 and plea bargained sentence of three years’ incarceration in the Texas
Department of Criminal Justice, Institutional Division, and $500 fine. Because appellant
waived his right of appeal, we will dismiss.
An appeal must be dismissed unless a certification showing that the defendant
has the right of appeal has been made part of the record. TEX. R. APP. P. 25.2(d). A
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See TEX. PENAL CODE ANN. § 31.03(a), (e)(5) (West Supp. 2013).
valid waiver of appeal prevents a defendant from appealing without the trial court’s
consent. Monreal v. State, 99 S.W.3d 615, 621 (Tex. Crim. App. 2003).
A defendant in a noncapital case may waive any right secured to him by law,
including the right to appeal. TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (West 2005);
Monreal, 99 S.W.3d at 617. A valid waiver which is voluntarily, knowingly, and
intelligently made will prevent a defendant from appealing a conviction absent
permission from the trial court. Monreal, 99 S.W.3d at 617. No attack on a waiver of
the right to appeal will be entertained in the absence of factual allegations supporting a
claim that the waiver was coerced or involuntary. Ex parte Tabor, 565 S.W.2d 945, 946
(Tex. Crim. App. 1978); Perez v. State, 885 S.W.2d 568, 570 (Tex. App.—El Paso
1994, no pet.). Merely filing a notice of appeal is insufficient to overcome the prior
waiver of appeal. Perez, 885 S.W.2d at 570.
As a condition of the plea bargain between appellant and the State, appellant
was required to waive his right of appeal. In addition to waiving his right of appeal, the
record reflects that the terms of the plea agreement were that the State would waive an
enhancement allegation, appellant would be found guilty of the charged offense, and
would be sentenced to three years’ incarceration and a $500 fine. The judgment
reflects that the trial court accepted this plea bargain. After sentence was imposed,
appellant signed a waiver of his right of appeal.
The trial court noted on the “Trial Court’s Certification of Defendant’s Right of
Appeal” that this was “a plea-bargain case, and the defendant has NO right of appeal,”
and that “the defendant has waived the right of appeal.” Based upon our review of the
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record, we find that appellant voluntarily, knowingly, and intelligently waived his right of
appeal. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). Thus, he
was required to obtain the trial court’s permission to appeal. Monreal, 99 S.W.3d at
617. While it is evident that appellant took some steps toward obtaining the trial court’s
permission to appeal, nothing in the record indicates that appellant was able to obtain
the trial court’s permission.
Because appellant has no right of appeal, we must dismiss this appeal. See
Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (en banc) (“A court of
appeals, while having jurisdiction to ascertain whether an appellant who plea-bargained
is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without
further action, regardless of the basis for the appeal.”).
Accordingly, we dismiss the appeal for want of jurisdiction. Any pending motions
are dismissed as moot.
Mackey K. Hancock
Justice
Do not publish.
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