IN THE

TENTH COURT OF APPEALS

No. 10-06-00287-CR

Romelle Peoples,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2006-390-C

          Romelle Peoples pleaded guilty to aggravated assault with a deadly weapon.  Pursuant to a plea bargain, the court sentenced him to five years’ imprisonment.  Peoples executed a waiver of appeal as part of the plea proceedings.  After imposition of sentence, he filed a “Request for Permission to Appeal.”  The district clerk treated this request as a notice of appeal and forwarded a copy to the Clerk of this Court.  Because Peoples waived appeal and because the trial court has not granted permission to appeal, we will dismiss this appeal.

          The trial court’s certification regarding Peoples’s right of appeal states, “[T]he defendant has waived the right of appeal.”  Rule of Appellate Procedure 25.2(d) provides in pertinent part, “The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made a part of the record under these rules.”  Tex. R. App. P. 25.2(d); see also Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005) (“the Court of Appeals was required to dismiss the appeal unless it concluded that the trial court’s certification was defective”).

          As part of the plea proceedings and consistent with the trial court’s certification, Peoples signed a waiver of appeal.  “[A] valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court.”  Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).

          There is nothing in the record to indicate that the trial court has granted permission to appeal.  In fact, forty-two days after Peoples filed his request for permission to appeal,[1] the trial court made a docket notation which states, “Ct will take no action.”

          Accordingly, assuming without deciding that Peoples’s “Request for Permission to Appeal” constitutes a sufficient notice of appeal under Rule 25.2(c), the appeal is dismissed.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(“Chief Justice Gray dissents, noting that dismissal is premature.  We have not given the defendant notice and opportunity to explain why there may be grounds to continue this appeal.  I would not dismiss the appeal until the defendant had been notified of our intent to dismiss the appeal unless the defendant can provide an explanation supporting the right to pursue the appeal in the face of a waiver of the right to appeal and the lack of a certification showing the defendant has a right to appeal.  This notice and the attendant delay is a small price to pay for due process compliance.”)

Appeal dismissed

Opinion delivered and filed January 10, 2007

Do not publish

[CR25]