In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00012-CR

______________________________

ALEX JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 36251-A

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter
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MEMORANDUM OPINION

After the trial court denied his motion to suppress evidence, Alex Johnson pled guilty to the

charge of aggravated assault and submitted the issue of punishment to the trial court. The trial court

sentenced Johnson to fifteen years' imprisonment. Johnson now appeals, raising three points of

error, but a problem with our jurisdiction prevents us from reaching the merits of those issues. For

the reasons stated below, we dismiss this case for want of jurisdiction.

The clerk's record in this case shows that, after the trial court had formally sentenced

Johnson, he executed a document entitled "Waiver of Motion for New Trial and Right of Appeal."

In this waiver, Johnson acknowledged his right to appeal, but affirmatively (and with his trial

counsel's permission) waived that right. Johnson further acknowledged this waiver was made

"voluntarily, knowingly and intelligently." The trial court did not thereafter grant Johnson

permission to appeal. 

Under Texas law, a defendant in a noncapital casemaywaive any right secured by Texas law.

TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon 2005). A defendant may even waive the right

to appeal. Dorsey v. State, 84 S.W.3d 8, 10 (Tex. App.—Texarkana 2002, no pet.). A valid waiver

of appeal deprives the appellate court of jurisdiction to consider the merits of the appeal. Id. (citing

Clayburn v. State, 985 S.W.2d 624, 625 (Tex. App.—Waco 1999, no pet.). "No attack on the waiver

of the right to appeal will be entertained in the absence of factual allegations supporting the claim
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that the waiver was coerced or involuntary." Id. (citing Ex parte Tabor, 565 S.W.2d 945, 946 (Tex.

Crim. App. 1978)).

On the authority of Willis v. State, 121 S.W.3d 400 (Tex. Crim. App. 2003), Johnson argues

that, despite the waiver of appeal, he was granted permission to appeal by the trial court. In Willis,

the Texas Court of Criminal Appeals held that an order granting permission to appeal was effective

even when the defendant had previously executed a waiver of appeal. Id. at 403.

Johnson's argument originates from the several trial court certificates concerning his right

of appeal. Judge Harold Entz conducted Johnson's plea hearing, punishment trial, and sentencing.

Johnson entered a plea of no contest December 10, 2007. On that same day, Judge Entz, Johnson,

and his attorney signed the form "Trial Court's Certification of Defendant's Right of Appeal." The

form allows the trial court to check one of the following applicable to the case: 

____ is not a plea bargain case, and the defendant has the right of appeal;

____ is a plea bargain case, but matters were raised by written motion filed

and ruled on before trial and not withdrawn or waived, and the

defendant has the right of appeal;

____ is a plea bargain case, but the trial court has given permission to

appeal, and the defendant has the right of appeal;

____ is a plea bargain case, and the defendant has NO RIGHT OF

APPEAL;

____ the defendant has waived the right of appeal.

None of the statements were marked as applicable to this case. 

The next day, a trial on punishment began and continued until December 14, 2007. At that

time, final statements were presented and punishment was imposed. Also on December 14, Johnson
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executed the waiver of motion for new trial and right of appeal. The waiver states that it was signed

after "conviction" and "punishment was imposed." Johnson gave notice of appeal January 14, 2008,

and on January 30, 2008, Judge Alvin Khoury signed another certification indicating that the case

was not a plea bargain and the defendant had the right of appeal. This certificate was not signed by

Johnson or his counsel. On April 3, 2008, Judge Khoury signed a third certification with the same

notation as Khoury's previous certificate. The last certification was also signed by Johnson and his

attorney. 

We find the facts here are substantially different from those in Willis. In Willis, it was clear

throughout the proceedings the defendant had motions filed and ruled on which would be preserved

for appeal. Here, there is no discussion in the record by the attorneys, the judge, or Johnson that

Johnson was attempting to preserve issues on appeal. Further, in Willis the defendant signed a

waiver in conjunction with the admonishments at the time of his guilty plea; here, a separate

document waiving appeal was signed after sentence had been imposed. Finally, in Willis, the trial

court specifically granted the defendant permission to appeal ("the trial court expressly and in writing

granted permission for appellant to appeal . . . ." ). Id.

Here, none of the judicial certifications expressly grant Johnson the right to appeal. At most,

Judge Khoury's certificate recognized that the case was not based on a negotiated plea and under the

law an appeal was available. See TEX. R. APP. P. 25.2(a), (b); TEX. CODE CRIM. PROC. ANN. art.

44.02 (Vernon 2006). Since Judge Entz's order had marked none of the options shown above, it
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granted no permission to appeal. Judge Khoury, who did not try the case, certified that it did not

involve a negotiated plea and "defendant has the right of appeal," but the order did not grant him

permission to appeal. It is one thing to recognize (even if in error) that, under the law, a defendant

has the right to appeal, but something altogether different to grant permission for a defendant to

appeal. Nothing in the judicial certifications grants Johnson permission to appeal and therefore does

not negate or displace Johnson's waiver of appeal. Even after finding the waiver to be operative,

Johnson is entitled to a consideration of any factual allegations that the waiver of appeal was

involuntary. See Tabor, 565 SW 2d at 946. 

Johnson asserts the waiverwas involuntaryonlybecause there is no audio or reporter's record

of the process in which he executed the waiver. Experience teaches that waivers are often signed

outside the range of hearing by the State, the trial court, and even the court reporter—perhaps at the

quiet of counsel table, where the accused and defense counsel may engage in private discussion.

Thus, it is typically impossible for such attorney-client discussions to be recorded by the court

reporter. Nor is the court reporter required to make a record of such private attorney-client

conversations absent specific consent and request by the accused.

In Tabor, the Texas Court of Criminal Appeals specifically noted that the habeas applicant

had failed to marshal any evidence to support an assertion of coercion or involuntariness in

connection with his waiver of the right to appeal. Id. This despite the fact that he had such an

opportunity at the hearing before the trial court on his application. Similarly, Johnson did not request
We acknowledge that Johnson also waived his right to file a motion for new trial, and 1

thereby arguably waived his right to a hearing on such a motion. If the joint waiver of new trial and

appeal was truly involuntary, as Johnson now contends on appeal, we see no reason why he would

not have filed a motion for new trial and sought a hearing in the trial court on that motion, despite

having otherwise waived that right.

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a hearing on a motion for new trial, and he has directed our attention to no evidence to support his

appellate claim of involuntariness.1

Absent any formal requirement that an accused and defense counsel make a recording of their

discussions about the waiver of appeal, what remainsis Johnson's bare assertion of involuntariness.

He directs our attention to nothing in the appellate record that would support or suggest

involuntariness. Nor have we found any such evidence. Nor does the mere absence of a record of

Johnson's discussion with his trial counsel about the process of signing the waiver of his right to

appeal inherently demonstrate involuntariness.

We, therefore, conclude Johnson's waiver of his right to appeal is valid and binding, and we

dismiss this appeal for want of jurisdiction. 

Jack Carter

Justice

Date Submitted: September 3, 2008

Date Decided: September 5, 2008

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