                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00374-CR

ERNEST RICKY GOODEN, JR.,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 11-04778-CRF-272


                         MEMORANDUM OPINION


      The trial court convicted Appellant Ernest Gooden of the offense of harassment

of a public servant.    The court assessed Gooden’s punishment at seven years’

imprisonment but suspended the prison sentence and placed him on community

supervision for five years. Gooden appealed.

      On April 22, 2013, we received the reporter’s record of a plea hearing held on

April 18, 2013 in Trial Court Cause No. 12-04822-CRF. The evidence presented at the

hearing indicated that, as part of the plea agreement in that case, Gooden agreed to
waive his right to appeal in this case (the appeal of Trial Court Cause No. 11-04778-

CRF-272).         Included in the plea agreement and order signed by Gooden, his trial

counsel, the State’s attorney, and the trial court judge was the notation “waiver of

continued appeal in 11-04778-CRF-272.” The following exchange also occurred at the

hearing:

              THE COURT: . . . And you’re going to waive appeal in Cause No.
        11-04778-CRF-272; is that correct?

                   THE DEFENDANT: Yes, sir.

              THE COURT: You understand you have a right to continue your
        appeal in that case?

                   THE DEFENDANT: (Moving head up and down.)

              THE COURT: You don’t have to waive your appeal, but you have
        decided to make an overall agreement here on all your cases; is that right?

                   THE DEFENDANT: Yes, sir.

                   THE COURT: Is that what you want to do?

                   THE DEFENDANT: Yes, sir.

               THE COURT: Does any of the attorneys have any extras they want
        to offer at this time? Questioning?

                   [Prosecutor]: Judge, if I may?

                   THE COURT: Come on up.

              [Prosecutor]: Does that mean -- if the Court could ask Mr. Gooden
        is he asking the Waco Court of Appeals to dismiss his appeal he’s
        currently on?

              THE COURT: Now, we’re going to send a copy of this record up to
        the Waco Court of Appeals, if they want it, and they’re going to see what
        you say right now to this question. Is it your desire to waive and stop

Gooden v. State                                                                       Page 2
        your appeal to the Tenth Court of Appeals in this cause number that I just
        went over with you?

                  THE DEFENDANT: Yes, sir.

              THE COURT: Okay. And so you’re asking them to dismiss your
        appeal; is that correct?

                  THE DEFENDANT: Yes, sir.

        By letter dated May 8, 2013, we directed Gooden to, within fourteen days of the

date of the letter, file either a motion to dismiss that complied with Rule 42.2(a) or a

response explaining why a motion to dismiss would not be filed and why this appeal

should continue. On May 9, 2013, Gooden’s counsel sent him a letter accompanied by a

motion to dismiss signed by counsel. The letter instructed Gooden that if he desired to

dismiss his appeal, he should sign the motion to dismiss and either return it to his

counsel or send it to this Court. The letter further instructed Gooden that, alternatively,

he may tell this Court why the appeal should not be dismissed. Gooden did not sign

and file the motion to dismiss provided by his counsel; however, he sent a pro se

response, acknowledging that he “gave up” this appeal as part of a plea agreement.

Accordingly, Gooden’s appeal is dismissed because he waived his right of appeal as

part of a plea agreement.




                                                 REX D. DAVIS
                                                 Justice




Gooden v. State                                                                      Page 3
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Appeal dismissed
Opinion delivered and filed June 13, 2013
Do not publish
[CR25]




Gooden v. State                             Page 4
