Opinion
No. 13-02-579-CR
Memorandum Opinion delivered and filed August 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 24th District Court of DeWitt County, Texas.
Before Justices HINOJOSA, YAÑEZ, and BAIRD.
Former Texas Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon Supp. 2004).
MEMORANDUM OPINION
Appellant was charged by indictment with the offenses of theft and theft by appropriating stolen property. Tex. Pen. Code Ann. § 31.03(b)(1), (2) (Vernon Supp. 2004). Appellant pled guilty to the offense of theft and the trial judge accepted the plea, assessing punishment at six years' confinement in the Texas Department of Criminal Justice — Institutional Division. We dismiss. Appellant's pretrial motion to suppress evidence was denied, and the case proceeded to trial before a jury on a plea of not guilty. However, after the State rested its case-in-chief, appellant changed her plea to guilty, waived her right to trial by jury, signed a judicial confession, and waived her right to appeal. As part of the plea bargain agreement, appellant executed documents stating that, in exchange for appellant's plea of guilty, the State would not seek more than six years incarceration. Additionally, in exchange for the waiver of appeal, the State agreed to dismiss with prejudice two other pending indictments. The trial judge accepted the plea and subsequently assessed punishment, pursuant to the plea bargain agreement, at six years' confinement. Appellant filed a notice of appeal and subsequently filed an amended notice of appeal seeking to appeal the denial of the pretrial motion to suppress. The trial judge entered an order stating he had not given permission to appeal. The 2003 amendments to the Texas Rules of Appellate Procedure require the trial court to certify a defendant's right of appeal. See Tex.R.App.P. 25.2(a)(2). On January 15, 2004, we abated this appeal to give the trial court an opportunity to file the certification order. We received the trial court's certification on January 30, 2004. See Tex.R.App.P. 25.2(d). The certification order states that this "is a plea bargain case, and the defendant has NO right of appeal." Counsel has filed an Anders brief. Anders v. California, 386 U.S. 738, 744 (1967). We find counsel has presented a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. High v. State, 573 S.W.2d 807, 812 (Tex.Crim.App. 1978). Counsel informed the Court that he served appellant with a copy of the brief and advised her of her right to file a pro se brief. More than thirty days have passed, and appellant has not filed any pro se brief. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813. Pursuant to rule 25.2(d), an appeal must be dismissed if, as in the instant case, a certification showing the right to appeal has not been made part of the record. See Tex.R.App.P. 25.2(d). Nevertheless, the certification showing no right to appeal does not eliminate our duty to perform an independent review of the record upon receipt of an Anders brief. Chavez v. State, Nos. 13-03-174-CR 13-03-175-CR, 2004 Tex. App. LEXIS 5100, at *3 (Tex. App.-Corpus Christi June 10, 2004, no pet. h.) (designated for publication); see Penson v. Ohio, 488 U.S. 75, 80 (1988) (upon receipt of "frivolous appeal" brief, appellate courts must conduct "full examination of all the proceeding[s] to decide whether the case is wholly frivolous"). Article 44.02 of the Texas Code of Criminal Procedure provides a defendant the right to appeal. Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979 Supp. 2004). However, article 1.14 of the same code provides that a defendant in a non-capital felony case may waive any right secured to her by law. Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon Supp. 2004). As noted above, as part of her plea bargain, appellant signed a waiver of her right of appeal. The validity of this waiver has not been challenged by either counsel for appellant, or appellant pro se. Therefore, she may not appeal without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 617 (Tex.Crim.App. 2003); Blanco v. State, 18 S.W.3d 218, 220 (Tex.Crim.App. 2000); Escochea v. State, No. 13-01-761-CR, 2004 Tex. App. LEXIS 5366, at *3 (Tex. App.-Corpus Christi June 17, no pet. h.). The clerk's record affirmatively demonstrates that the trial judge did not give appellant permission to appeal. Upon receiving a frivolous appeal brief, the appellate courts must conduct a "full examination of all the proceedings to decide whether the case is wholly frivolous." Penson, 477 U.S. at 80. We have carefully reviewed the record and counsel's brief. The record shows that appellant waived her right to appeal by written waiver. We find nothing in the record that might arguably support this appeal. See Escochea, 2004 Tex. App. LEXIS 5366, at *31. An appellate court may grant counsel's motion to withdraw in connection with an Anders case. Counsel has requested to withdraw from further representation of appellant. We grant counsel's motion to withdraw and order counsel to inform appellant of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam); Tex.R.App.P. 68 (governing discretionary review in the court of criminal appeals). This appeal is dismissed.
An agreement to a punishment cap is a plea agreement within the meaning of former Rule 25.2 of the Texas Rules of Appellate Procedure. Carlton v. State, 91 S.W.3d 363, 364 (Tex. App.-Texarkana 2002, no pet.) (holding agreed cap on punishment limited appellate court's jurisdiction under former Rule 25.2(b)(3)); Lemoins v. State, 37 S.W.3d 556, 557-59 (Tex. App.-Beaumont 2001, no pet.) (same); Delatorre v. State, 957 S.W.2d 145, 148-49 (Tex. App.-Austin 1997, pet. ref'd) (holding State's recommendation need not be finite period for plea agreement to be valid and comply with former Rule 40(b)(1)); see now Tex.R.App.P. 25.2(a)(2).