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### OPI NIO N No. 04-10-00007- CR Ruben MORENO , Appellant
v. The STATE of Texas, Appellee Fr om the 25th J udicial District Court, Guada lupe County , Texas

Trial Court No. 01-0697- CR Honora ble Dwig ht E. Peschel, Judge Pre siding Opinion by : Marialy

n Ba rnar d, J ustice Sitt ing: Catherine Stone, Chief Justice

Kar en Ang elini, J ustice Marialy n Ba rnar d, J ustice Deliver ed and F iled: J uly 21, 2010 STATE’S MOTI ON TO D I SMI SS GR ANTED A ND APPEALDI SMI SSED I n 2002, appellant Ruben Moreno pleade d nol o contende re to the offe nse of delivery of marijuana pursuant to a plea barg ain ag ree ment. Pursuant to the p l ea agr eement, the trial court sentenc ed him to ten y ear s confine ment, but in lieu of confine ment, place d appellant on community supervision for a term of ten y ear s. I n 2009, t h e S tate filed its third motion to revoke appellant’ s community supervision. The State ultimately alleg ed appellant v i o l ated seven conditions of0 4

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probation. I n response , appellant signe d a “Stipulation and J udicial Confession” in which he pled true to violating six of the seven conditions asser ted in the State’s motion to revoke
. I n addition to pleading true t o numerous probation violations, appellant also waived numerous rights, including his right to appe al. Th e trial court revoked appellant’s probation, and sentenced him to ten y ear s confine ment in the Texas Depa

rtment of Criminal J ustice-I nsti t u t i o n al Division. The trial court completed a
cer tification of the defe ndant’s rig ht to appea l pursuant to rule 25.2(d). See T E X . R. A P P . P. 25.2(d). I n that cer

tification, the t rial court stated appellant had waived hi s rig ht to appeal. I t appea red the waiver was invalid beca

use acc ording to the rec ord befor e this court, it was not made pursuant to an ag ree ment on sentenc ing, or made post-sentenc ing. 1 Compare Blanco v. State , 18 S.W .3d 218, 220 (Tex. Crim. App. 2000) with Ex parte Thomas , 545 S.W .2d 469, 470 (Tex. Crim. App. 1 9 7 7 ). Acc ording ly , we or dere d the trial cour t to amend its certific ation. See T E X . R. A P P . P. 25.2(f)
. When the trial court filed its amende d cer tification, the trial court also included a statement that appellant orally waived his rig ht to appea l “at the conclusion o f the revoc ation hear ing and sentenc ing.” Acc ording to the trial court, the waiver was made in open court, under oath, and with counsel prese nt. Subsequently , the State filed a motion asking this court to (1) rec onsider our order requiring the trial court to amend the cer tification, and (2) strike the amende d cer tification. The State also filed a motion to dismiss the appea l based on appellant’ s waiver
. Given t h e i n fo rm at i on provided this court in the t rial court’s amende d cer tification reg arding appellant’ s oral wa iver, we g rante d the State’s motion to rec onsider and motion to s t ri k e and order ed our Fe bruar y 10, 2010

1 ... N o r e p o r t e r ’ s r e c o r d h a s b e e n f i l e d i n t h i s c a s e . T h u s , w h e n w e o r d e r e d t h e t r i a l c o u r t t o a m e n d i t s c e r t i f i c a t i o n , w e w h e r e u n a w a r e o f a n y o r a l w a i v e r o f t h e r i g h t t o a p p e a l
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order withdrawn and the trial court’s amende d cer tification stricken. We further order ed appellant to show cause why this appea l should not be dis missed based on the waiver of appeal
. We stated that if appellant did not show cause why this appea l should not be dismiss ed, we would dismiss the appea l. Appellant did not file a re sponse to our show ca use orde r. I n Mo n r ea l v. State , the court of criminal appea ls held that “[a] valid waiver of appea l, whether neg otiated or non-neg otiated, will preve nt a defe ndant from appea ling without the consent
o f t h e t ri al court.” 99 S.W .3d 615, 622 (Tex. Crim. App. 2003). Howeve r, the court of crimi n al appea ls has also held that pre- sentenc ing waiver s of the rig ht to appea l are not “valid” beca use they cannot, as a matter of law, be made knowing ly , voluntarily , and intelligently
. Thomas , 545 S.W .2d at 470. I n Blanco , the court distinguished Thomas
. Blanco , 18 S.W .3d at 220. I n Blanco , afte r a jury convicted the def

en d ant but befor e sentenc ing, the defe ndant and the State enter ed into an ag ree ment by which the State promised to rec ommend a six teen- y ear sentenc e. Id. I n exchang e, the defe ndant promi s ed not to appea l his conviction. Id. The court of criminal appea ls held the defe ndant in Blanco waived his rig ht to appea l despite the fac t it was made pre- sentenc ing beca use unlike the d e f

e n dant in Thomas , the defe ndant in Blanco barg ained for a sentenc ing rec ommendation in exchang e for his waiver of t he right t o appea l, which was honored by the t rial court. Id. Thus, pursuant to the court’s holdings in Monreal , Thomas , and Blanco , a waiver of the rig ht to appea l is valid, i.e., knowing ly , voluntarily , and i n t el l i g ently made, when the waiver is made subject to a barg ained for sentenc ing rec ommendation, which is subsequently fol lo w e d b y th e tr ia l c o u rt, or when the waiver i s made post-se ntencing
. A waiver i s valid under those circ umstances because in both instances the defe ndant, at the time of the waiver , knows the likely conseque nces of the waiver
. See Tufele v. State , 130 S.W .3d 267, 270 (Tex. App.—Houston [14t h Dist.] 2004, no pet.). I n t h i s

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case , as noted above, the trial court has advised this court in writing that appellant made an oral waiver of hi s rig ht to appea l afte r t he trial court im posed a ten y ear sentenc e. Be cause the waiver
was made afte r sentenc ing, appellant, like the defe ndant in Monreal , knew the conseque nces of the waiver
. This rende red his waiver valid, i.e., it was knowing ly , voluntarily , and intelligently made. The fa ct that the wa iver wa s oral ra ther than w ritten is of no conseque nce. See D elatorre v. State , 957 S.W .2d 145, 149 (Tex. App.—Austin 1997, pet. ref ’d) (holding written or oral waiver preve nts defe ndant from a

ppealing as long as waiver was made knowing ly , intelligently , and with ce rtainty as to what punishment would be a ssessed). Ba sed on the fore g oing, we hold appellant has waived his rig ht to appea l. Acc ording ly , we g rant the State’ s motion t o dismiss the appe al and the a ppeal is dismissed.
Marialy n Ba rnar d, J ustice Publis h

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