DISMISS; Opinion Filed April 22, 2015.




                                          S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                       No. 05-14-00308-CR

                             ROBERT EARL OLIVER, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                        On Appeal from the 195th Judicial District Court
                                     Dallas County, Texas
                             Trial Court Cause No. F11-60922-N

                              MEMORANDUM OPINION
                         Before Justices Bridges, Lang-Miers, and Myers
                                    Opinion by Justice Myers
       Appellant Robert Earl Oliver entered a negotiated plea of guilty to the offense of murder

and pleaded true to the indictment’s two enhancement paragraphs that alleged prior felony

convictions. The trial court found the enhancements true and, pursuant to the plea agreement,

sentenced appellant to fifty years in prison. In one issue, appellant argues the trial court abused

its discretion by previously granting the State’s motion for mistrial. We dismiss the appeal for

want of jurisdiction.

                                            DISCUSSION

       Appellant’s sole issue on appeal is that the trial court abused its discretion by granting the

State’s motion for mistrial. The State responds: (1) this is plea-bargained case and that appellant

has not received permission to pursue the appeal from the trial court, nor does the instant appeal

pertain to a written matter filed and ruled on before trial; (2) appellant waived his right to appeal
as part of the plea bargain agreement; (3) alternatively, the trial court did not abuse its discretion

by granting the motion for mistrial.

        Appellant was originally indicted for murder on November 7, 2011. He entered a plea of

not guilty by reason of insanity and a jury was empaneled to determine his guilt or innocence.

On March 5, 2013, after the jury was selected but before it was sworn as a whole or the trial

testimony started, the trial court was informed that appellant’s former girlfriend, who was not

involved in the trial, had visited the jury room and provided information to three of the jurors.

Specifically, the trial court heard evidence that the girlfriend entered the jury room when only the

three jurors were present and showed them a picture on a cell phone. She told them that the cell

phone picture was of appellant’s ten-year-old son. Two of the jurors passed this information on

to a fourth juror. The trial court ultimately granted the State’s motion for mistrial over the

defense’s objection, concluding that the conduct involved was so highly prejudicial that the case

should be tried to a different jury.

        A competency hearing was later held on April 17, 2013, after which the trial court found

appellant was incompetent to stand trial at that time and ordered him committed to the North

Texas State Hospital, Vernon Campus, for a period of 120 days. On July 10, 2013, the trial court

again found appellant mentally incompetent and ordered him committed to the North Texas State

Hospital for a period not to exceed twelve months. Appellant was subsequently found competent

to stand trial.

        On February 18, 2014, appellant entered the negotiated plea of guilty to the offense and

pleaded true to the indictment’s two enhancement paragraphs.            The plea papers signed by

appellant and his attorney stated that the agreed sentence was 50 years; the trial court followed

the agreement and sentenced appellant to fifty years in prison. The plea papers also had a check

mark by the box that stated: “I understand that I have the right to appeal to the Court of Appeals.

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After consulting with my attorney, I do expressly, voluntarily, knowingly, and intelligently give

up and waive my right to any appeal if the Court follows the terms of the State’s

recommendation as to sentencing.” Additionally, the following boxes were checked on the trial

court’s certification of the defendant’s right to appeal, signed and dated by the trial court on

February 18, 2014, and filed that same day: (1) this is plea-bargained case and the defendant has

no right to appeal; (2) the defendant waived his right to appeal. Appellant and his attorney

signed the certification. Appellant’s handwritten notice of appeal was mailed on March 4, 2014.

On March 5, 2014, the trial court appointed counsel to represent appellant on appeal.

          Appellant is attempting to appeal the trial court’s ruling granting the State’s motion for

mistrial, which he argues “falls within the spirit of the exemption that permits an appeal from

any matter raised by a motion and ruled on before trial.” See TEX. R. APP. P. 25.2(a)(2). The

rule provides that in a plea-bargained case in which a defendant pleads guilty and the punishment

does not exceed the punishment recommended by the prosecutor and agreed to by the defendant,

the defendant may appeal only (1) those matters that were raised by written motion filed and

ruled on before trial, or (2) after getting the trial court’s permission to appeal. See TEX. R. APP.

P. 25.2(a)(2)(A), (B); TEX. CODE CRIM. PROC. ANN. art. 44.02. But a defendant may nonetheless

waive the right to appeal pretrial motions if the waiver is made “voluntarily, knowingly, and

intelligently.” See Marsh v. State, 444 S.W.3d 654, 660 (Tex. Crim. App. 2014) (citing TEX.

CODE CRIM. PROC. ANN. art. 1.14; Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App.

2009)).

          The record shows that appellant’s guilty plea was accepted by the trial court and he was

sentenced in accordance with the plea agreement to fifty years in prison. Appellant has not

received permission to pursue this appeal from the trial court, nor does the appeal involve a

written motion filed and ruled on before trial. See TEX. R. APP. P. 25.2(a)(2). Based on the plain

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text of the rule, appellant has not met the requirements to pursue this appeal.               See id.

Furthermore, even if we assume for the sake of argument that the State’s oral motion for mistrial,

which was dictated to the court reporter, qualified as a written motion under rule 25.2(a)(2)(A),

this appeal must be dismissed if we find that appellant validly waived his right to appeal.

       A defendant in a noncapital case may waive any right secured him by law, including his

right to appeal. Blanco v. State, 18 S.W.3d 218, 219 (Tex. Crim. App. 2000); Stanley v. State,

111 S.W.3d 773, 774 (Tex. App.––Fort Worth 2003, no pet.). A valid waiver of the right to

appeal will prevent a defendant from appealing without the consent of the trial court. TEX. CODE

CRIM. PROC. ANN. art. 1.14(a); Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003).

When a defendant waives his right of appeal as part of an agreement on sentencing and the

agreement is followed by the court, his waiver is made knowingly, intelligently, and voluntarily.

See Ex parte Delaney, 207 S.W.3d 794, 798–99 (Tex. Crim. App. 2006).

       Appellant argues that the language contained in the plea agreement is mere “boilerplate”

“that other events occurring at trial can override.” Indeed, a review of relevant authorities shows

that, insofar as plea agreement provisions such as a waiver of the right to appeal are concerned,

there are circumstances when a defendant’s waiver of appeal will not be considered a binding

element of the agreement. See Thomas v. State, 408 S.W.3d 877, 878 (Tex. Crim. App. 2013)

(signing plea-admonishment form that included waiver of right to appeal did not waive right to

appeal denial of motion to suppress; defendant did not plead guilty as part of negotiated plea

bargain and gained nothing in way of favorable punishment by signing form; she failed to sign

separate form dedicated to waiver of appeal; trial court did not discuss waiver during plea

colloquy; neither party objected at conclusion of punishment hearing to admonishment that

defendant could appeal any matter including adverse suppression ruling); Ex Parte De Leon, 400

S.W.3d 83, 89–90 (Tex. Crim. App. 2013) (because the pre-printed language in plea agreement

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contained both a waiver of right to appeal and assertion that trial court’s permission needed for

appeal, this “ambiguity” necessitated considering the entire record, and since trial court at

arraignment said defendant could appeal and prosecutor failed to object, trial court’s statement

prevailed; boilerplate waiver of appeal was not part of plea agreement and not intended to

override trial court’s permission to appeal); Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim.

App. 2003) (“The record demonstrates that the failure to cross out the language waiving appeal

in the plea forms was an oversight.”); Alzarka v. State, 90 S.W.3d 321, 323–24 (Tex. Crim. App.

2002) (“the language about waiving appeal in the plea forms was an oversight” and “the record

. . . rebuts any presumption raised by the terms of the boiler-plate plea form signed by appellant

and reflects that appellant did not waive appeal”).

       In the present case, however, the record shows that appellant waived his right to appeal.

Although the record does not show that anyone specifically referenced appellant’s waiver of his

right to appeal at the February 18, 2014 plea hearing, the record does not rebut the waiver-of-

appeal language in the written plea papers. In fact, the trial court expressly noted that appellant

waived his right to appeal by checking that box on the separately signed and filed certification of

defendant’s right to appeal, and both appellant and his attorney signed the certification. As such,

the record does not rebut the waiver-of-appeal language in the plea papers. See, e.g., Iles v.

State, 127 S.W.3d 347, 349–50 (Tex. App.––Houston [1st Dist.] 2004, no pet) (holding that

where nothing in clerk’s record or reporter’s record expressly rebutted defendant’s waiver of

appeal in written plea papers, such a waiver of appeal was valid); Jones v. State, No. 01–11–

00416–CR, 2012 WL 524441, at *1 (Tex. App.––Houston [1st Dist.] Feb. 16, 2012, no pet.)

(mem. op.) (not designated for publication) (where defendant, in addition to signing written plea

papers containing waiver of right to appeal, also signed trial court’s certification of right to

appeal, which noted that defendant waived right to appeal, the record showed defendant validly

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waived the right to appeal).

       Appellant also argues that the appointment of appellate counsel is a factor we should

consider in determining whether the “boilerplate” waiver language in the plea papers was a

binding element of the plea agreement. But the granting of a defendant’s request for appointed

counsel on appeal does not constitute an implied permission to appeal. See Iles, 127 S.W.3d at

350–51. As explained in Iles, it is incumbent on a trial court to appoint counsel and order a free

record if it finds that the appellant remained indigent, regardless of whether it had granted

permission to appeal. Id. at 351. For the reasons stated above, we therefore conclude appellant

voluntarily, knowingly, and intelligently waived his right of appeal as part of his plea agreement

with the State, and that appellant’s appeal must be dismissed for want of jurisdiction. See

Marsh, 444 S.W.3d at 660 (where record showed defendant validly waived right to appeal as part

of plea bargain, court of appeals never acquired jurisdiction, such that purported appeal must be

dismissed).

       We dismiss the appeal for lack of jurisdiction.



                                                            / Lana Myers/
                                                            LANA MYERS
                                                            JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140308F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

ROBERT EARL OLIVER, Appellant                     On Appeal from the 195th Judicial District
                                                  Court, Dallas County, Texas
No. 05-14-00308-CR       V.                       Trial Court Cause No. F11-60922-N.
                                                  Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                      Bridges and Lang-Miers participating.

     Based on the Court’s opinion of this date, this appeal is DISMISSED FOR WANT OF
JURISDICTION.

      Judgment entered this 22nd day of April, 2015.




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