Opinion issued March 10, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00770-CR
———————————
DASHONN LEONARDO DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1387462
MEMORANDUM OPINION
Appellant, Dashonn Leonardo Davis, pleaded guilty, without an agreed
recommendation as to punishment, to the offense of assault on a family member by
impeding breathing.1 The trial court deferred a finding of guilt and placed appellant
on community supervision for a period of two years.
Subsequently, the State moved to adjudicate guilt. Appellant pleaded true to
the State’s allegations and executed a waiver of his right to appeal in exchange for
the State’s recommendation that punishment be assessed at confinement in the
Institutional Division of the Texas Department of Criminal Justice for three years.
The trial court revoked appellant’s community supervision, adjudicated appellant
guilty, and, in accordance with the State’s recommendation, assessed punishment
at confinement for three years. Appellant filed a pro se notice of appeal. We
dismiss the appeal.
An appeal must be dismissed if a certification showing that the defendant
has the right of appeal has not been made part of the record. TEX. R. APP. P.
25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The trial
court’s certification, which is included in the record on appeal, states that appellant
has no right of appeal. See TEX. R. APP. P. 25.2(a).
A valid waiver of appeal prevents a defendant from appealing without the
trial court’s consent. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App.
2003). The record reflects that appellant swore to a stipulation of evidence,
pleading “true” to the allegations in the State’s motion to adjudicate his guilt. The
1
See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(b) (West Supp. 2014).
2
document contains an agreement that the State would recommend that appellant be
adjudicated guilty and punishment of confinement for three years. The document
also includes a “Waiver of Appeal,” stating that, “As part of my agreement with
the prosecutor to plead true, I AGREE TO WAIVE any right to appeal I may have
concerning any issue or claim in this case, including my plea [of] true or admission
of guilt.” Appellant separately initialed the waiver of appeal. The trial court found
the allegations true, adjudicated appellant guilty of the underlying offense, and
assessed punishment in accordance with the recommendation.
When a defendant waives his right of appeal in exchange for consideration
from the State, his waiver is made knowingly, intelligently, and voluntarily, and he
may not appeal any matters unless the trial court first grants permission. See Ex
parte Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009) (holding that
defendant may knowingly and intelligently waive appeal without sentencing
agreement when consideration is given by State for waiver); Blanco v. State, 18
S.W.3d 218, 219–20 (Tex. Crim. App. 2000). The record shows that appellant
waived his right to appeal as partial consideration, along with his plea of true, for
the State’s recommendation on punishment and that the trial court did not give its
permission to appeal.
3
Accordingly, we dismiss the appeal for want of jurisdiction. See Menefee v.
State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears, 154 S.W.3d at 613.
We dismiss appellant’s motion to dismiss the appeal as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
4