green
Positive treatment
Issue: pre-sentence waiverTX ↗
Issue: defendant enters waiverTX ↗
Issue: presentencing waiverTX ↗
Issue: record showing errorTX ↗
27.6 score
G Cite
cited 3× by 3 distinct cases, last quoted 2004 ·
…defendant has waived the right of appeal.
at p. 470
≈ altered
cited 3× by 2 distinct cases, last quoted 2000 · 2 courts ·
…that a defendant is not bound by his agreement to waive appeal which is made after judgment of conviction, but before the pronouncement of sentence.
at p. 470
✓
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977
2001
2026
Top citers, strongest first. 50 distinct citers.
How cited ↗
cited
Cited as authority (rule)
Gary Carson v. State
Ex parte Thomas, 545 S.W.2d 469, 469-70 (Tex. Crim.
discussed
Cited as authority (rule)
Benjamin Robert Barran v. State
(2×)
Dallas 2007, pet. ref’d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Ex parte Broadway, 301 S.W.3d 694, 697-698 (Tex.Crim.App. 2009) .....................................................5 Ex parte De Leon, 400 S.W.3d 83, 89 (Tex.Crim.App. 2013) .....................................................6 Ex parte Delaney, 207 S.W.3d 794, 799 (Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 Ex parte Hogan, 556 S.W.2d 56 (Tex.Crim.App. 1978) ...................…
discussed
Cited as authority (rule)
Benjamin Robert Barran v. State
(2×)
Dallas 2007, pet. ref’d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Ex parte Broadway, 301 S.W.3d 694, 697-698 (Tex.Crim.App. 2009) .....................................................5 Ex parte De Leon, 400 S.W.3d 83, 89 (Tex.Crim.App. 2013) .....................................................6 Ex parte Delaney, 207 S.W.3d 794, 799 (Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 Ex parte Hogan, 556 S.W.2d 56 (Tex.Crim.App. 1978) ...................…
discussed
Cited as authority (rule)
Kardell LaMont Jones v. State
However, in cases where no sentencing recommendation has been made by the State, “waiver of the right of appeal made prior to trial, as a matter of law, cannot be knowingly and intelligently made and such a waiver is not binding on defendant.” Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim.
discussed
Cited as authority (rule)
Kardell LaMont Jones v. State
In Ex parte Thomas, the Texas Court of Criminal Appeals held that “waiver of the right of appeal made prior to trial, as a matter of law, cannot be knowingly and intelligently made and such a waiver is not binding on defendant.” 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited as authority (rule)
Ruben Moreno v. State
App. 2000) with Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim.
discussed
Cited as authority (rule)
Moreno v. State
It appeared the waiver was invalid because according to the record before this court, it was not made pursuant to an agreement *268 on sentencing, or made post-sentencing. 1 Compare Blanco v. State, 18 S.W.3d 218, 220 (Tex.Crim.App.2000) with Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977).
cited
Cited as authority (rule)
Reedy, Ex Parte Billy George
App. 1976); Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited as authority (rule)
Ex Parte Reedy
Bailey v. State, 543 S.W.2d 653, 655 (Tex.Crim.App.1976); Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977). 21 .
cited
Cited as authority (rule)
Reedy, Ex Parte Billy George
App. 1976); Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited as authority (rule)
Ex Parte Delaney
In Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App.1976), and Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.
discussed
Cited as authority (rule)
Delfino Zaragoza, Jr. v. State
Although pre-sentencing waivers of the right to appeal may be held invalid where they are not, as a matter of law, made knowingly, voluntarily, and intelligently, see Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited as authority (rule)
David Ramos v. State
Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Cr.App. 1977).
cited
Cited as authority (rule)
David Ramos v. State
Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Cr.App. 1977).
cited
Cited as authority (rule)
David Ramos v. State
Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Cr.App. 1977).
examined
Cited as authority (rule)
Perez v. State
(3×)
also: Cited "see, e.g."
Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977).
examined
Cited as authority (rule)
Eddie Perez v. State
(3×)
also: Cited "see, e.g."
Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
discussed
Cited as authority (rule)
Tufele v. State
Because Appellant could not have known what her sentence would be at the time she entered her plea, Monreal does not apply.”) (citing Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977); Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App.1976)).
cited
Cited as authority (rule)
Tufele, Mathew v. State
Because Appellant could not have known what her sentence would be at the time she entered her plea, Monreal does not apply. @ ) (citing Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim .
cited
Cited as authority (rule)
Ronald T. Hargesheimer v. State
Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited as authority (rule)
Hargesheimer v. State
Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977).
cited
Cited as authority (rule)
Jermaine Roshawn Jackson v. State
See id .; E x parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited as authority (rule)
Jermaine Roshawn Jackson v. State
See id.; Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited as authority (rule)
Talbott, Angela v. State
App. 1976); Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
discussed
Cited as authority (rule)
Talbott v. State
(2×)
See Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App.1976); Ex parte Dickey, 543 S.W.2d 99, 101 (Tex.Crim.App.1976); Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977).
cited
Cited as authority (rule)
Willie Nobles v. State of Texas
Validity of Waiver In Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
discussed
Cited as authority (rule)
Cynthia Bellard v. State
App. 1976 )(pre-trial waiver of right to appeal in guilty plea without a plea bargain agreement held to be not binding on defendant); Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
discussed
Cited as authority (rule)
Hilyard v. State
We are aware that pretrial waivers of the right to appeal were held to be invalid in Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App.1976), Ex parte Dickey, 543 S.W.2d 99, 101 (Tex.Crim.App.1976), and Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977).
discussed
Cited as authority (rule)
Williams v. State
(2×)
The Court also acknowledged its holdings in Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977) and Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App.1976), that a defendant’s pretrial waiver of the right to appeal is not binding.
cited
Cited as authority (rule)
Littleton v. State
Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977); Doyle v. State, 888 S.W.2d 514, 518 (Tex.App.-El Paso 1994, pet. ref'd); Smith, 858 S.W.2d at 611 .
examined
Cited as authority (rule)
Blanco v. State
(3×)
also: Cited "see"
Appellant, however, argues that Article 1.14(a) does not apply here and he does not have to keep his promise because this Court has held “that a defendant is not bound by his agreement to waive appeal which is made after judgment of conviction, but before the pronouncement of sentence.” Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Cr.App.1977) (and authorities cited therein).
cited
Cited as authority (rule)
Moss v. State
Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977); Ex parte Townsend, 538 5.W.2d 419, 420 (Tex.Crim.App.1976); see also Lerma v. State, 758 S.W.2d 383, 384 (Tex.App.—Austin 1988, no pet.).
cited
Cited as authority (rule)
Thomas Moss v. State
Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited "see"
Brodrick Michael James v. State
See Smith v. State, 20 91 S.W.3d 407, 408-09 (Tex.App.—Texarkana 2002, no pet.) (citing Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977)).
cited
Cited "see"
Anthony Jermaine Mallard v. State
See Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited "see"
Jaime Trevino v. State
See Smith v. State, 91 S.W.3d 407, 408-09 (Tex.App.–Texarkana 2002, no pet.) (citing Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
Jaime Trevino v. State
See Smith v. State, 91 S.W.3d 407, 408-09 (Tex.App.–Texarkana 2002, no pet.) ( citing Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
Jaime Trevino v. State
See Smith v. State, 91 S.W.3d 407, 408-09 (Tex.App.-Texarkana 2002, no pet.) ( citing Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
Gary Don Freeman v. State
See Smith v. State, 91 S.W.3d 407, 408-09 (Tex.App.–Texarkana 2002, no pet.) (citing Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
Gary Don Freeman v. State
See Smith v. State , 91 S.W.3d 407, 408-09 (Tex.App.–Texarkana 2002, no pet.) (citing Ex parte Thomas , 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
Gary Don Freeman v. State
See Smith v. State , 91 S.W.3d 407, 408-09 (Tex.App.-Texarkana 2002, no pet.) (citing Ex parte Thomas , 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
Gary Don Freeman v. State
See Smith v. State , 91 S.W.3d 407, 408-09 (Tex.App.-Texarkana 2002, no pet.) (citing Ex parte Thomas , 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
Bostick, Benjamin A. v. State
See Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited "see"
Tony Eugene Tinsley v. State
See Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim.
cited
Cited "see"
Arthur Goodson v. State
See Smith v. State , 91 S.W.3d 407, 408-09 (Tex.App.-Texarkana 2002, no pet.) (citing Ex parte Thomas , 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
First Permian, L.L.C. and Energen Resources Company v. James P. Graham
See Smith v. State, 91 S.W.3d 407, 408-09 (Tex.App.-Texarkana 2002, no pet.) ( citing Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)).
cited
Cited "see"
Donnie Brambridge Stowe v. State
See Ex parte Thomas , 545 S.W.2d 469, 470 (Tex.Crim.App. 1977).
Retrieving the full opinion text from the archive…
Ex Parte Albert Donald THOMAS
51829.
Court of Criminal Appeals of Texas.
Jan 19, 1977.
Stanley G. Schneider, Huntsville, for appellant., Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
Dally.
Cited by 86 opinions | Published
OPINION
DALLY, Commissioner.This is a post conviction writ of habeas corpus proceeding. See Article 11.07, V.A. C.C.P.
The petitioner, who was convicted for the offense of involuntary manslaughter, asserts that he was denied the right of appeal. The petitioner gave written notice of appeal within ten days after he was sentenced. He contends that this meets the requirements of Article 44.08, V.A.C.C.P., and regardless of the waiver he made, he was entitled to appeal. The question presented is whether a defendant is bound by his agreement to waive appeal when that agreement is made after judgment of conviction but before the pronouncement of sentence.
The agreement to waive appeal was as follows:
“COMES NOW DEFENDANT, and having been convicted herein, defendant knows he is entitled to ten (10) days in which to file a Motion for New Trial and Motion in Arrest of Judgment, and that he has a right to appeal said conviction to the Texas Court of Criminal Appeals, and Defendant waives his right to said ten (10) days period, waives his rights to file a Motion for New Trial, and Motion in Arrest of Judgment, and waives his right to appeal this conviction. Defendant prays that he be sentenced forthwith.
“/S/ Michael D. Bvck Attorney for Defendant
/S/ Albert D. Thomas Defendant
“The above Waiver of the ten day period to file a Motion for New Trial and Motion in Arrest of Judgment, and Waiver of filing Motion for New Trial and Motion in Arrest of Judgment and Defendant’s Waiver of his right of Appeal are hereby in all things approved by the Court.
“/S/ Don Metcalfe Judge”
The petitioner’s habeas corpus petition was filed in the trial court and the trial judge under the authority of and in compliance with Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967), made findings of fact and conclusions of law which in pertinent part are as follows:
“The Court has reviewed the records of Cause No. F-75-3157-JI and has concluded that a hearing is unnecessary to dispose of the Petitioner’s Application. The Court makes the following findings of fact:
“(1) Petitioner appeared before the Court on May 2, 1975 his counsel being present, and entered a plea of[*470] guilty to the charge contained in the indictment, and after having been properly admonished upon the consequences of his plea in the manner and time provided by law, Petitioner persisted in pleading guilty to the charge, and the Court having examined the witness, determined that Petitioner’s plea was knowingly and voluntarily made, the Court accepted Petitioner’s plea of guilty and heard the evidence offered by the State, Petitioner’s signed judicial confession, and determined Petitioner’s guilt upon his plea and the evidence in this case.
“(2) At the conclusion of Petitioner’s trial on the issue of guilt or innocence, the Court considered Petitioner’s written waiver of delay in sentencing, and Petitioner and his counsel being present, proceeded to sentence Petitioner in accordance with the verdict of the Court determining Petitioner’s guilt at ten years in the Texas Department of Corrections.
“(3) In connection with the Petitioner’s waiver of delay in sentencing, Petitioner waived in writing with the consent of his attorney and the approval of this Court Petitioner’s right to file a Motion for New Trial, Motion in Arrest of Judgment, and his right to appeal his conviction to the Texas Court of Criminal Appeals.
“(4) Petitioner’s notice of appeal in writing was filed with the Clerk of this Court on May 8, 1975.
“(5) Petitioner did not obtain the consent of the Trial Court to appeal his conviction.
“The Court makes the following conclusions of law:
“(1) Petitioner waived his right to appeal his conviction to the Court of Criminal Appeals of Texas, Reed v. State, 516 S.W.2d 680.”
We have held that the waiver of the right of appeal made prior to trial, as a matter of law, cannot be knowingly and intelligently made and such a waiver is not binding on defendant. Ex parte Townsend, 538 S.W.2d 419 (Tex.Cr.App.1976). We have also held that a knowing and intelligent waiver of the right of appeal made after a defendant has been sentenced is binding. Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr. App.1976).
More recently in Bailey v. State, 543 S.W.2d 653 (delivered December 1, 1976), we considered a waiver of appeal which appears to be precisely the same as that we are considering here. In that case this Court rejected the appellant’s contention that he had not waived the time for filing a motion for new trial. However, we stated that the appellant was correct with respect to the waiver of his right to appeal and that the waiver of the right to appeal was premature.
We now hold that a defendant is not bound by his agreement to waive appeal which is made after judgment of conviction, but before the pronouncement of sentence.
The appellant’s notice of appeal was timely. See Article 44.08, V.A.C.C.P.
Since the petitioner’s appeal has now been delayed, he should be permitted pursuant to the provisions of Article 40.09, V.A.C. C.P. to perfect his appeal as if notice of appeal were timely filed on the date the mandate is issued by this Court in this proceeding.
It is so ordered.
Opinion approved by the Court.