Opinion issued August 28, 2018




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00310-CR
                            ———————————
                         HERNAN PATINO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1488464


                          MEMORANDUM OPINION

      Without an agreed punishment recommendation from the State, appellant,

Hernan Patino, pleaded guilty to the felony offense of indecency with a child by

sexual contact.1 The trial court found appellant guilty and assessed his punishment


1
      See TEX. PENAL CODE ANN. § 21.11(a), (c), (d) (West Supp. 2017).
at confinement for ten years. Appellant timely filed a 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). Here, the trial court

certified that appellant had waived his right of appeal. In this Court, appellant filed

a motion to abate the appeal, asserting that the certification was defective because

the record did not reflect a bargained-for waiver of his right of appeal. We granted

appellant’s motion, abated the appeal, and remanded the case to the trial court for

clarification of appellant’s right of appeal.

      After we abated the appeal, the trial court held a hearing at which appellant’s

counsel and the State were present. At that hearing, appellant’s counsel stated his

belief that, “in reviewing the record more thoroughly with the plea admonishments”

from the trial court, appellant “does appear to have waived his right to appeal in

exchange for the State giving up their right to a jury trial.” The State agreed that “the

record from the plea hearing shows that [appellant] waived his right to appeal in

exchange for a consideration from the State, with that consideration being that . . .

the State would waive its right to a jury trial.” At the trial court’s request, the State

read a portion “from the Reporter’s Record of [appellant’s] plea hearing”:

      And as the Trial Judge is admonishing [appellant] about his plea on Page
      5 of the Reporter’s Record, the Trial Judge says, “Okay. And I see from
      the paperwork that you have checked the box where you’re waiving and
      giving up your right of appeal. Are you giving up that right of appeal in
      exchange for the State giving up their right to a jury trial?

      [Appellant] answers, “Yes, ma’am.”

      The Court states, “State willing to give up their right to a jury trial?”

      The trial prosecutor states, “State waives its right to a jury trial, Your
      Honor.”

At the end of the abatement hearing, the trial court stated, “[L]et the record reflect

that [appellant] waived [his right of appeal] in consideration of the State waiving

their right to a jury trial.” The trial court also signed findings of fact and conclusions

of law, finding:

      1. On December 12, 2016, in cause number 1488464, appellant
         pleaded guilty to the offense of indecency with a child and waived
         his right of appeal in exchange for the State waiving its right to a
         jury trial. . . .

      2. During the plea hearing conducted by Judge Stacey Bond on
         December 12, 2016, appellant himself, in the presence of his lawyer,
         orally affirmed that he was waiving his right of appeal in exchange
         for the State waiving its right to a jury trial. . . .

      3. On December 12, 2016, Judge Bond executed the “trial court’s
         certification of defendant’s right of appeal.” . . . The judge marked
         the box stating that appellant waived his right of appeal. . . . Both
         appellant and his attorney signed this document.

And the trial court concluded:

      1. Appellant knowingly and voluntarily entered his guilty plea and
         waived his right of appeal.
      2. Appellant entered an enforceable plea-bargain agreement with the
         State when he pleaded guilty and waived his right of appeal. By
         waiving its right to a jury trial, the State provided valid consideration
         for the plea-bargain agreement. Ex parte Broadway, 301 S.W.3d
         694 (Tex. Crim. App. 2009).

      3. Since appellant waived his right of appeal pursuant to a valid and
         enforceable plea-bargain agreement in which both parties provided
         consideration, appellant has no right of appeal. Id. Therefore, the
         certification of appellant’ s right to appeal executed by Judge Bond
         on December 12, 2016, is accurate.

      A valid waiver of appeal—one made voluntarily, knowingly, and

intelligently—prevents a defendant from appealing without the trial court’s consent.

See Ex parte Broadway, 301 S.W.3d at 697 (citing Monreal v. State, 99 S.W.3d 615,

617 (Tex. Crim. App. 2003)); see also TEX. CODE CRIM. PROC. ANN. art. 1.14 (West

2005) (“The defendant in a criminal prosecution for any offense may waive any

rights secured him by law . . . .”). “[A] defendant may knowingly and intelligently

waive his entire appeal as a part of a plea, even when sentencing is not agreed upon,

where consideration is given by the State for that waiver.” Ex parte Broadway, 301

S.W.3d at 699; see Jones v. State, 488 S.W.3d 801, 807 (Tex. Crim. App. 2016)

(explaining presentence waivers of right of appeal have been upheld when record

showed defendant received consideration for waiver pursuant to plea agreement).

Here, the record reflects that, by agreeing to waive its right to a jury trial, the State

gave consideration for appellant’s waiver of his right to appeal. See Ex parte

Broadway, 301 S.W.3d at 697–98. Because the record demonstrates that he waived
his right of appeal, appellant may not appeal his conviction. See id. at 697; Blanco

v. State, 18 S.W.3d 218, 219 (Tex. Crim. App. 2000); see, e.g., Macias-Sanchez v.

State, No. 14-16-00302-CR, 2017 WL 950129, at *1 (Tex. App.—Houston [14th

Dist.] Mar. 9, 2017, no pet.) (mem. op., not designated for publication).

      Accordingly, we reinstate the 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 Lloyd.

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