
Opinion issued February 13, 2003






 


 

In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-02-01346-CR
____________

KOLAN OLIVER JENKINS, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 908019



MEMORANDUM  OPINION
	On November 22, 2002, appellant pleaded no contest to possession with
intent to deliver more than one gram, but less than four grams, of cocaine.  Appellant
signed under oath a written waiver of constitutional rights and agreement to stipulate
to evidence.  The document provided, among other things, as follows:
	I intend to enter a plea of guilty and the prosecutor will
recommend that my punishment should be set at 2 years TDCJ
and I agree to that recommendation. . . .  Further, I waive any
right of appeal which I may have should the court accept the
foregoing plea bargain agreement between myself and the
prosecutor.

	The document included a signed statement of appellant's counsel that read,
in part:
	I represent the defendant in this case and I believe that this
document was executed by him knowingly and voluntarily and
after I fully discussed it and its consequences with him.  I believe
that he is competent to stand trial.  I agree to the prosecutor's
recommendation as to punishment.

The document was also signed by the prosecutor and the trial judge.
	The trial court proceeded to find appellant guilty of possession with intent
to deliver more than one gram, but less than four grams, of cocaine and, following the
plea agreement, assessed punishment at two years' confinement.  Despite having
waived the right to appeal, appellant filed a pro se notice of appeal.  We hold the
appeal must be dismissed.
 In Buck v. State, 45 S.W.3d 275, 278 (Tex. App.--Houston [1st Dist.] 2001,
no pet.), this Court held that, in a plea-bargained case in which the trial court
followed the plea bargain agreement, a pre-sentencing waiver of the right to appeal
conditioned on the trial court's acceptance of the plea bargain agreement was valid
and enforceable.  See also Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App.
2000); Bushnell v. State, 975 S.W.2d 641, 642-44 (Tex. App.--Houston [14th Dist.]
1998, pet. ref'd); Littleton v. State, 33 S.W.3d 41 (Tex. App.--Texarkana 2000, pet.
ref'd); but see Alzarka v. State, 90 S.W.3d 321 (Tex. Crim. App. 2002). (1)
	Appellant waived under oath any right to appeal as part of his plea bargain
agreement if the punishment assessed by the trial court did not exceed the agreement. 
According to the statement of appellant's counsel, appellant executed the waiver of
constitutional rights and agreement to stipulate to evidence only after counsel had
fully discussed it and its consequences with him.  The trial judge followed the plea
bargain agreement in assessing punishment.
	Accordingly, we order the appeal dismissed.
PER CURIAM
Panel consists of Chief Justice Radack, and Justices Nuchia and Hanks.

Do not publish.  Tex. R. App. P. 47.2(b).
1. In Alzarka, the Texas Court of Criminal Appeals did not enforce the waiver of
the right to appeal.  In that case, as in the present one, the plea papers included
a waiver of the right to appeal.  Unlike the present case, however, the record
in Alzarka was clear that the trial court had granted permission to appeal an
adverse ruling on a pretrial motion to suppress.  In the present case, there were
no adverse rulings on pretrial motions filed by appellant's counsel, and the trial
court's judgment is stamped, "Appeal waived.  No permission to appeal
granted."  There is no reporter's record of the plea hearing because the
presence of a court reporter was waived.  For these reasons, this appeal is not
controlled by Alzarka.
