Antonio Catrell Gatlin v. State

Opinion issued May 6, 2014

In The

Court of Appeals

For The

First District of Texas

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NO. 01-13-00338-CR

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ANTONIO CATRELL GATLIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Case No. 12-CR-1068

MEMORANDUM OPINION

Appellant, Antonio Catrell Gatlin, timely appealed from his conviction for

the felony offense of possession of a controlled substance. See TEX. HEALTH &

SAFETY CODE. ANN. § 481.115(a), (c) (West 2010). The clerk’s record filed on

April 18, 2013 contains a certification of appellant’s right to appeal indicating that

this “is not a plea-bargain case, and the defendant has the right of appeal.” On

March 18, 2014, after appellant failed to respond to a notice informing him that the

time for filing his brief had expired, we abated the case and ordered the trial court

to determine whether (1) appellant wishes to pursue his appeal and (2) appellant’s

retained trial counsel intends to represent appellant on appeal.

On April 9, 2014, the trial court reporter filed a reporter’s record of the

abatement hearing held by the trial court that day. At the hearing, appellant stated

that he did not wish to continue with his appeal. After both appellant and his

counsel further confirmed that appellant did not wish to pursue his appeal, the trial

court requested that counsel prepare “an order reflecting that [appellant] wants to

waive his appeal and get [appellant’s] signature to reflect that waiver of appeal.”

On April 10, 2014, the trial court clerk filed a supplemental clerk’s record

containing an April 9, 2014 certification of appellant’s right to appeal stating that

“the defendant has waived the right of appeal.” The certification was signed by the

trial court, appellant, and appellant’s counsel.

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. See TEX. R. APP. P.

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

court’s April 9, 2014 certification, which is included in the record on appeal, states

that appellant waived his right of appeal. See TEX. R. APP. P. 25.2(a)(2). A valid

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waiver of appeal prevents a defendant from appealing without the trial court’s

consent. See Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).

A waiver of appeal made after sentence is imposed is valid. See Monreal, 99

S.W.3d at 618, 622; Moreno v. State, 327 S.W.3d 267, 268–69 (Tex. App.—San

Antonio 2010, no pet.); Delatorre v. State, 957 S.W.2d 145, 149 (Tex. App.—

Austin 1997, pet. ref’d). Because the record reflects that appellant waived the right

to appeal after his sentence was imposed, appellant has no right of appeal and we

must dismiss this appeal. See TEX. R. APP. P. 25.2(d); 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).”); Dears, 154 S.W.3d at 613 (“The court of appeals must dismiss an

appeal if a certification showing that the defendant has the right to appeal is not

made a part of the appellate record.”).

Accordingly, we reinstate this appeal and dismiss the appeal for want of

jurisdiction. We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Justices Keyes, Bland, and Brown.

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

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