Hill v. StateHill v. State
- Reporters:
- ,
- Before:
- Davis
MEMORANDUM OPINION
PER CURIAM.This cause is before us on three motions: (1) the State’s motion to dismiss for want of jurisdiction based on Lolethia Hill’s wаiver of her appellate rights; (2) Hill’s motion to file an amended notice of appeal; and (3) her motion to extend the time to designate and file the record. Although Hill’s waiver of her appellatе rights does not affect our jurisdiction, she cannot bring an appeal that she has waived, and we will we grаnt the State’s motion to dismiss. Given that ruling, both of Hill’s motions are moot and we will also dismiss them.
PROCEDURAL BACKGROUND
In January 1995, Lolethia Hill plеd guilty to possession of a controlled substance, cocaine, but the court postponed making a finding of guilt and placed her on ten years deferred adjudication probation.
However, on May 23 she filed two letters with the court — one a copy of a lеtter to her former attorney stating “I want to appeal [the courtj’s decision of sentencing me tо ten years T.D.C.” and a second addressed to the court “about appealing [her] sentence оf ten years T.D.C.” The court, viewing these letters as indicating a desire to appeal, filed them as notiсes of appeal, appointed an attorney to represent Hill before this court, and dirеcted the clerk to forward copies of the letters and the docket sheet to us.
We recеived the clerk’s information form, the attached copies of both letters, and the court’s dockеt sheet on June 5.
THE STATE’S MOTION TO DISMISS
The State claims that Hill’s appeal should be dismissed for want of jurisdiction based on her waiver of hеr right to appeal at the time she pled “true” to the allegations in the motion to adjudicate. A сriminal defendant may waive many of her rights, including the right to appeal a conviction. Freeman v. State, 913 S.W.2d 714, 717 (Tex.App.—Amarillo 1995, no pet.); Doyle v. State, 888 S.W.2d 514, 517 (Tex.App.—El Paso 1994, pet. ref‘d); Perez v. State, 885 S.W.2d 568, 570 (Tex.App.—El Paso 1994, no pet.); Smith v. State, 858 S.W.2d 609, 611 (Tex.App.—Amarillo 1993, pet. refd). A knowing and intelligent waiver of the right to appeal is binding on the defendant and prevents her frоm appealing any issue in the cause without the consent of the court. Ex parte Tabor, 565 S.W.2d 945, 946 (Tex.Crim.App.1978); Freeman, 913 S.W.2d at 717; Perez, 885 S.W.2d at 570; Smith, 858 S.W.2d at 611. Merely *609 filing a notice of appeal is not sufficient to overcome the waiver. Tabor, 565 S.W.2d at 946; Perez, 885 S.W.2d at 568.
The State argues that Hill’s waiver deprives us of jurisdiction over her appeal. Other courts have dismissed appeals for want of jurisdiction on the basis оf the appealing defendant’s waiver of his right to appeal. E.g., Freeman, 913 S.W.2d at 718; Doyle, 888 S.W.2d at 518; Perez, 885 S.W.2d at 572; Smith, 858 S.W.2d at 613. However, “the parties of a suit can neither confer nor waive jurisdiction by agreement or consent.” Stine v. State, 908 S.W.2d 429, 431 (Tex.Crim.App.1995). Thus, our jurisdiction is unaffeсted by Hill’s waiver of her right to appeal. See id.; see also Olivo v. State, 918 S.W.2d 519, 522-23 (Tex.Crim.App.1996); Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App. [Panel Op.] 1981).
Although we have jurisdiction over the appeal, Hill cannot appeal without showing that she obtained the permission of the trial court. Cf. Jack v. State, 871 S.W.2d 741, 744 (Tex.Crim.App.1994) (waiver of nonjuris-dictional defects by a nonnegotiated plea of guilty “only means the defendant will not ultimately prevail in his appeal of such matters, not that an appellate court lacks jurisdiction to entertain it.”). She has not shown that the court gave her permission to appeal. Nor has she attempted to disavow the waiver. See Freeman, 913 S.W.2d at 717; Smith, 858 S.W.2d at 611. Because we conclude that the waiver is valid and binding, Hill is prevented from bringing this appeal. Therefore, we will grant the State’s motion to dismiss, but not on the ground that we lack jurisdiction оver Hill’s appeal.
HILL’S MOTION TO FILE AN AMENDED NOTICE OF APPEAL AND MOTION FOR AN EXTENSION OF TIME TO DESIGNATE AND FILE THE RECORD
Because we dismiss this appeal on the ground that Hill is prevented from apрealing by her waiver, we need not rule on her motion to amend her notice of appeal and dismiss it as moot. For the same reason, we also dismiss her motion for an extension of time to designate and file the record.
CONCLUSION
Although we have jurisdiction over this cause, we find that Hill cannot bring an appeal аbsent permission from the trial court because she waived her right to an appeal. She has not shоwn that she has permission to appeal or that her waiver is invalid. Thus, we grant the State’s motion and dismiss this cause.
Notes
. Our rulings in this opinion are based on the limited information currently available to us: Hill’s motion to file an amеnded notice of appeal and her motion to extend time to file the transcript and statement of facts; the State‘s motion to dismiss for want of jurisdiction; the trial court clerk‘s
. There is no indication of whether this punishment was assessed under the terms of a plea bargain agreement.