Dashonn Leonardo Davis v. State

Opinion issued March 10, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-14-00770-CR

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DASHONN LEONARDO DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Case No. 1387462

MEMORANDUM OPINION

Appellant, Dashonn Leonardo Davis, pleaded guilty, without an agreed

recommendation as to punishment, to the offense of assault on a family member by

impeding breathing.1 The trial court deferred a finding of guilt and placed appellant

on community supervision for a period of two years.

Subsequently, the State moved to adjudicate 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 confinement in the

Institutional Division of the Texas Department of Criminal Justice for three years.

The trial court revoked appellant’s community supervision, adjudicated appellant

guilty, and, in accordance with the State’s recommendation, assessed punishment

at confinement for three years. Appellant filed a pro se notice of appeal. We

dismiss the 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.

25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The trial

court’s certification, which is included in the record on appeal, states that appellant

has no 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). The record reflects that appellant swore to a stipulation of evidence,

pleading “true” to the allegations in the State’s motion to adjudicate his guilt. The

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See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(b) (West Supp. 2014).

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document contains an agreement that the State would recommend that appellant be

adjudicated guilty and punishment of confinement for three years. The document

also includes 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 [of] true or admission

of guilt.” Appellant separately initialed the waiver of appeal. The trial court found

the allegations true, adjudicated appellant guilty of the underlying offense, and

assessed punishment in accordance with the recommendation.

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 his right to appeal as partial consideration, along with his plea of true, for

the State’s recommendation on punishment and that the trial court did not give its

permission to appeal.

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Accordingly, we dismiss the appeal for want of jurisdiction. See Menefee v.

State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009); Dears, 154 S.W.3d at 613.

We dismiss appellant’s motion to dismiss the appeal as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).

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