Opinion issued June 18, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00339-CR
NO. 01-13-00340-CR
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GREGG FRANCO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause Nos. 1300790, 1305998
MEMORANDUM OPINION
Appellant, Gregg Franco, pleaded guilty to the felony offense of possession
of a controlled substance1 in trial court cause 1300790 and to the state jail felony
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West 2010).
offense of possession of a controlled substance2 in cause 1305998 and pleaded true
to the allegations in two state jail felony enhancement paragraphs in cause
1305998.3 The trial court deferred making a finding of guilt in each case, found
the allegations in the enhancements paragraphs true, and placed appellant on
community supervision for a period of five years.
Subsequently, the State moved in each case to revoke appellant’s
supervision and for adjudication of 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 three years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice in cause
1300790 and at eight months’ confinement in the State Jail Division in cause
1305998. The trial court revoked appellant’s community supervision in each case,
adjudicated appellant guilty, and, in accordance with the recommendations of the
State, assessed punishment at confinement for three years in cause 1300790 and for
eight months in cause 1305998. The trial court’s certifications of appellant’s right
of appeal, which are not signed by the trial court, indicate that appellant waived the
right of appeal. Nevertheless, appellant filed a pro se notice of appeal. We dismiss
these appeals.
2
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010).
3
See TEX. PENAL CODE ANN. § 12.425(a) (West Supp. 2012).
2
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 certifications, which are included in the record on appeal, state that
appellant waived the right of appeal.4 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 in each
case, pleading “true” to the allegations in the State’s motion to adjudicate
appellant’s guilt. The documents contain agreements that the State would
recommend revocation of appellant’s community supervision, punishment of
confinement for three years in cause 1300790 and for eight months in cause
1305998, and no fine. The documents also include 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 or [sic] true or admission of guilt.” Appellant separately initialed each
waiver of appeal. The trial court found the allegations true, adjudicated appellant
4
Although we may order the trial judge to provide signed certifications, we will not
do so when, as here, corrected certifications would not authorize us to exercise
jurisdiction over these appeals. See TEX. R. APP. P. 25.2(d); Dears v. State, 154
S.W.3d 610, 613 (Tex. Crim. App. 2005).
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guilty of the underlying offenses, and assessed punishment in accordance with the
recommendations.
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 records shows that appellant
waived his right to appeal as partial consideration, along with his plea of true, for
the State’s recommendations on punishment and that the trial court did not give its
permission to appeal.
Because appellant has no right of appeal, we must dismiss these appeals. See
Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears v. State,
154 S.W.3d 610, 613 (Tex. Crim. App. 2005).
Accordingly, we dismiss the appeals for want of jurisdiction. We dismiss
any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Sharp and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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