Court of Civil Appeals of Texas, 1995

Alan Lynn Richardson v. State

Court of Civil Appeals of Texas · Decided May 3, 1995

Opinion

Richardson v. State

IN THE

TENTH COURT OF APPEALS

No. 10-94-296-CR

ALAN LYNN RICHARDSON,

Appellant

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 25,177

MEMORANDUM OPINION

Alan Richardson attempts to appeal from his conviction for possession of a controlled substance, cocaine, and the assessed punishment of eight years' imprisonment, probated for eight years, and a $500 fine. See Tex. Health & Safety Code Ann. §§ 481.102(D), 481.115(a) (Vernon 1992 & Supp. 1995). The conviction and punishment followed a negotiated plea of no-contest. In his brief he raises one point of error, claiming that the court erred by denying a pre-trial motion to suppress the cocaine. However, we find that we do not have jurisdiction over this cause because Richardson failed to comply with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 40(b)(1); Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994); Davis v. State, 870 S.W.2d 43 (Tex. Crim. App. 1994).

After his motion to suppress was denied, Richardson waived his right to a jury trial and to confront the witnesses against him and pleaded no contest in exchange for a recommendation from the State that his punishment be assessed at eight years' imprisonment, probated for eight years, and a $500 fine. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 1995). The court admonished him, accepted his plea, and set a sentencing hearing pending a presentence investigation report. See id. art. 26.13 (Vernon 1989 & Supp. 1995). When the sentencing hearing convened, the court initially assessed punishment that exceeded the agreement reached between the State and Richardson. After some off-the-record discussion, the court changed the punishment and sentenced Richardson according to the agreement. Richardson filed a "general" notice of appeal, which merely states that he "hereby gives notice of appeal from his conviction in this case which occurred on 22 August 1994."

To appeal from a conviction "rendered upon [a] plea of . . . nolo contendere [when] the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant . . . the notice [of appeal] shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial." Tex. R. App. P. 40(b)(1). A "general" notice of appeal, i.e., one that does not contain the extra statements required by the "but" clause of Rule 40(b)(1), only invokes the jurisdiction of this court to consider jurisdictional defects. See Lyon, 872 S.W.2d at 736. "A ‛general' notice of appeal is insufficient to confer jurisdiction on a Court of Appeals to review a trial court's ruling on a pretrial suppression motion in an appeal from a conviction based on a negotiated plea bargain." Davis, 870 S.W.2d at 46. We may not allow Richardson to amend the notice of appeal out of time. See id. at 47; Jones v. State, 796 S.W.2d 183, 187 (Tex. Crim. App. 1990).

Because Richardson does not raise jurisdictional complaints, we must dismiss his appeal for want of jurisdiction. See Davis, 870 S.W.2d at 47.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed May 3, 1995

Do not publish

lea, and assessed the agreed punishment. See id. art. 26.13 (Vernon 1989 & Supp. 1995). Twenty-nine days later, Roy filed a notice of appeal. Tex. R. App. P. 40(b)(1), 41(b)(1).

Roy's notice of appeal is a two-page, pre-printed form, consisting of a checklist of allegations and assertions. The form allows the person filling it out to select among the allegations by checking a small box along side the statement. Roy checked the boxes indicating (1) that his convictions followed a plea bargain, (2) that he intended to appeal the court's denial of "the attached written pre-trial motion(s)," (3) that the judge had "granted permission to appeal the issues set forth herein," and (4) that his plea was involuntary because his trial counsel failed to provide effective assistance of counsel. Although the form provides the option of indicating that the defendant wishes to complain that the evidence is insufficient, Roy did not select that option when he filled out his "notice of appeal."

To appeal from a conviction "rendered upon [a] plea of guilty . . . [when] the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant . . . the notice [of appeal] shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial." Tex. R. App. P. 40(b)(1). "If [the defendant] wishes to appeal a matter which is nonjurisdictional in nature . . . he must conform to the requirements of the [Rule] and include within his notice what the grounds of appeal are and the fact that he has received the permission of the trial court to appeal those matters." Jones v. State, 796 S.W.2d 183, 186 (Tex. Crim. App. 1990). If the notice does not meet the requirements of Rule 40(b)(1) it is a general notice of appeal and only invokes our jurisdiction to consider jurisdictional complaints. Lyon, 872 S.W.2d at 736; Morrison, 896 S.W.2d at 393.

Roy indicated that the court granted him permission to appeal "the issues set forth herein," a phrase that we interpret to refer to the issues Roy checked on his notice of appeal. Solis v. State, 890 S.W.2d 518, 519 n.2 (Tex. App.—Dallas 1994, no pet.). However, he did not check the statement indicating that he intended to appeal the sufficiency of the evidence supporting his conviction. Thus, with respect to the sufficiency issue, his notice of appeal is general. Lyon, 872 S.W.2d at 736; Jones, 796 S.W.2d at 186. Sufficiency of the evidence is not a jurisdictional complaint. Rhem v. State, 873 S.W.2d 383, 384 (Tex. Crim. App. 1994); Lyon, 872 S.W.2d at 736.

The State argues that the "statements required by rule 40(b)(1) must be true [and] the record must support that Appellant received permission from the trial court to appeal," citing Solis v. State and Hutchins v. State. Solis, 890 S.W.2d at 520; Hutchins v. State, 887 S.W.2d 207, 210 (Tex. App.—Austin 1994, pet. ref'd); see also Hernandez v. State, 894 S.W.2d 807, 809-10 (Tex. App.—San Antonio 1994, no pet.); Robinson v. State, 880 S.W.2d 193, 194 (Tex. App.—San Antonio 1994, no pet.). Thus, according to the State, because nothing in the record indicates that Roy obtained the court's permission to appeal, his notice of appeal is a general notice and we do not have jurisdiction over this cause.

However, we need not address this argument because Roy did not indicate that the court granted him permission to appeal the sufficiency of the evidence, as required. Jones, 796 S.W.2d at 186. Thus, the truthfulness of his statement that the court granted him permission to appeal is not at issue.

Because Roy failed to invoke our jurisdiction, we must dismiss his appeal. Davis, 870 S.W.2d at 47; Morrison, 896 S.W.2d at 394. The State's motion to dismiss is granted.