Opinion issued August 30, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00451-CR
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FELIX GUILLORY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 163rd District Court
Orange County, Texas
Trial Court Cause No. B-110668-R
MEMORANDUM OPINION
On April 10, 2012, a jury found appellant, Felix Guillory, Jr., guilty of the
state-jail felony offense of possession of a controlled substance1 and, based on his
pleas of true to two prior convictions for felony offenses, the jury assessed his
punishment at 16 years’ imprisonment.2 The trial court entered judgment pursuant
to the jury’s verdict and executed a certification of appellant’s right to appeal
stating that this is not a plea-bargain case and appellant has the right to appeal.
Appellant timely filed a notice of appeal and a motion for new trial on April 19,
2012. The trial court granted the motion for new trial as to the punishment phase
on May 31, 2012. Appellant and the State then entered into a plea agreement for
appellant’s punishment. In the agreement, the State agreed to recommend that
appellant be sentenced to eleven months confinement in a state jail facility, the
parties agreed that appellant had 162 days of credit toward his sentence, and
appellant waived his right to appeal from both the guilt/innocence and punishment
phases of the trial. On July 5, 2012, the trial court sentenced appellant in
accordance with the parties’ agreement and certified that appellant waived the right
to 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.
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010).
2
See TEX. PENAL CODE ANN. § 12.425(b) (West Supp. 2011).
2
25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The trial
court’s July 5, 2012 certification, which is included in the record on appeal, states
that appellant waived the 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).
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 the right to appeal in exchange for a sentencing recommendation from the
State and that the trial court did not give its permission to appeal.
Because appellant has no right of appeal, we must dismiss this appeal. See
Dears, 154 S.W.3d at 613; see also Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex.
Crim. App. 2009) (“If a new certificate of appeal . . . were to certify that the
appellant waived his right to appeal, then, of course, the court of appeals could
only exercise its appellate jurisdiction to dismiss the appeal under Rule 25.2(d).”).
3
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all
pending motions as moot.
PER CURIAM
Panel consists of Justices Bland, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
4