il4 Dismissed, Order issued October 30, 1996

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In The Court of Appeals I r iTtftl^ Itstrtrt of Wexns at Ballas No. 05-92-02063-CR

LEWIS BIVINS, Appellant V.

THE STATE OF TEXAS, Appellee

OPINION AND ORDER

Before Chief Justice Thomas and Justices Maloney and Hankinson Lewis Bivins appeals his conviction for unauthorized use of a motor vehicle. As part of a plea bargain agreement, appellant pleaded nolo contendere and was placed on ten years probation on December 20, 1990.1 Subsequently, the State moved to revoke appellant's probation. Again, as part of a plea bargain agreement, appellant pleaded true to the allegations in the State's motion, and the trial court sentenced him to ten years in prison on August 14, 1992. Appellant timely perfect his appeal.

Specifically, the agreement provided that appellant would be sentenced to ten years in prison but would be allowed to participate in the Special Alternative Incarceration Program. About three months after sentence was imposed, the trial court ordered appellant placed on probation for ten years.

Mivo The State filed a motion to dismiss the appeal on the ground that this Court does not have jurisdiction because appellant filed only a general notice of appeal. In his brief, filed by retained counsel Ross Teter, appellant concedes this Court has no jurisdiction pursuant to rule 40(b)(1) of the Texas Rules of Appellate Procedure and asserts no points of error.

Rule 40(b)(1) provides: [I]f the judgment was rendered upon [an appellant's] plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice 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 does not confer jurisdiction upon this Court to consider nonjurisdictional issues. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim.

App.), cert, denied, 114. S. Ct. 2684 (1994).

In this case, appellant entered his plea of true to the State's motion to revoke probation pursuant to a negotiated plea bargain. The punishment assessed by the trial court did not exceed that agreed to by appellant and his attorney and recommended by the State.

Further, appellant filed only a general notice of appeal.

According to appellant's brief, appellant was admonished in writing and by the Court in substantial compliance with article 26.13 of the code of criminal procedure. Additionally, the brief asserts that the record does not reflect that the plea was involuntary. Appellant has brought no points of error raising jurisdictional defects. Because appellant filed a

-2- W/w general notice of appeal, this Court does not have jurisdiction over this appeal.

Accordingly, we GRANT the State's March 7,1995 motion to dismiss appealfor want of jurisdiction.

We DISMISS the appeal for want of jurisdiction.

LINDA THOMAS CHIEF JUSTICE Do Not Publish Tex. R. App. P. 90

-3- •&^«*B»m;»^>'i«^

NO. O5-92-02063-CR

LEWIS BIVINS S IN THE COURT OF APPEALS VS. S FOR THE FIFTH DISTRICT THE STATE OF TEXAS S OF TEXAS AT DALLAS

FILED IN COURT of ftp"""; ON APPEAL FROM THE MJ\R - 7 1995 265TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY TEXAS MELANiE Ktliutf IN CAUSE NO. F90-53996-PR CLERK, >*--

BTATE'S MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION FILED IN RESPONSE TO APPELLANT'S BRIEF

TO THE HONORABLE JUDGES OF SAID COURT!

COMES NOW the State of Texas, by and through the Criminal District Attorney of Dallas County, Texas, and files this motion to dismiss the appeal for want of jurisdiction. In support of this motion, the State would show the Court the following:

I.

Appellant was convicted of unauthorized use of a motor vehicle and sentenced to 10 years confinement in the Texas Department of Criminal Justice, Institutional Division, pursuant to the terms of a plea bargain agreement. The judgment was dated December 20, 1990. (R.1-11-12). On April 8, 1991, the sentence was suspended and Appellant was placed on 10 years probation. (R.I-13). On August 14, 1992, the court revoked Appellant's probation and sentenced him to 10 years' confinement in the Texas Department of Criminal Justice, Institutional Division, pursuant to a plea bargain agreement. (R.I-19, 21-22).

II.

The State is asking this Court to dismiss the appeal for lack of jurisdiction. This case involves a plea of nolo contendere by Defendant in a trial before the court wherein the punishment assessed by the court did not exceed the punishment recommended by the prosecution and agreed to by Defendant and his attorney. (R.I- 9, ll).1 TEX. R. APP. P. 40(b)(1) provides that in such a case, in order to pursue an appeal, Defendant must state in his notice of appeal that he had permission of the court to appeal or that he is appealing those matters raised by written motion filed prior to trial. The notice of appeal filed by Defendant in this case does not contain any of these required statements. (R.1-26-27).

III.

The State calls this Court's attention to the recent decisions by the Court of Criminal Appeals in Lvon v. State. 872 S.W.2d 732,736 (Tex. Crim. App. 19941 and Davis v. State. 870 S.W.2d 43,46 (Tex. Crim. App. 1994), wherein the Court held that a general notice of appeal in an appeal from a negotiated plea is not sufficient to confer jurisdiction on an appellate court. This holding applies to nonjurisdictional defects which occur both before and after the plea. Davis. 870 S.W.2d at 736. This holding

'No citation has been made to the Statement of Facts due to its unavailability. •«'•«'." -."— SS&ii«»l!N«S«!*Mii^^

applies even to negotiated pleas in cases where the defendant entered the plea with the understanding that he would be able to appeal a pretrial motion; a general notice of appeal in such a case is insufficient to confer jurisdiction on an appellate court. Id. Moreover, an appellate court may not permit a defendant to amend a notice of appeal out of time. Id. at 737.

IV.

The State respectfully urges this Court to apply the rulings in Lyon and Davis to its own decision in the instant case.

Defendant's notice of appeal is deficient and cannot now be timely amended to meet the requirements of Rule 40(b)(1). In the absence of an adequate notice of appeal, this Court is without jurisdiction to entertain the appeal.

V.

Appellant has filed a brief wherein he admits that his notice of appeal does not comply with Rule 40(b)(1) and that Lyon and Davis apply. Appellant is therefore in agreement with the State's position and, consequently, his appeal should be dismissed for want of jurisdiction.

VI.

WHEREFORE, PREMISES CONSIDERED, the State respectfully requests this Court to dismiss Defendant's appeal for want of :-'3'S**M^?^*^^^£^^^

jurisdiction because Defendant has not properly perfected his appeal in accordance with TEX. R. APP. P. 40(b)(1).

Respectfully submitted,

By: LISA L. BRAXTON ASSISTANT DISTRICT^ATTpRNEY STATE BAR NO. 00787131 FRANK CROWLEY COURTS BUILDING LOCK BOX 19 DALLAS, TEXAS 75207-4399 (214) 653-3624

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing motion to dismiss has been served on Ross Teter, Attorney for Appellant, N. Stemmons Freeway, Suite 100, Dallas, Texas 75207-4397, by depositing same in the United States Mail, Postage Prepaid, on this the _£J2r daY of March, 1995.

^S<-^<l^~^c^\.

LISA) L. BRAXTON lib No Oral Argument Requested

IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS cou"1^* ™M« FEB 2 21995 MELANIE KtLluM 1/ LEWIS HORACE BIVINS § clerk J § VS. § NO. 05-92-02063-CR § THE STATE OF TEXAS §

Appeal From 265th Judicial District Court (Dallas) Judge KEITH DEAN Trial Cause No. F90-53996-R

APPELLANTS BRIEF ON APPEAL

Submitted by:

ROSS TETER Texas Bar No. 19811000 N. Stemmons Freeway, Suite 100 Dallas, Texas 75207-4397 Telephone: (214) 744-0400 Fax: (214)748-7461 Counsel for Appellant (On Appeal Only) LIST OF PARTIES

LEWIS HORACE BIVINS (Appellant) D.O.B. 625310 TDCJ Beto I Unit Tennessee Colony, TX 75880 JOHN VANCE, District Attorney Frank Crowley Courts Building N. Industrial Blvd. Dallas, Texas 75207

TABLE OF CONTENTS List of Parties 2 Table of Authorities 2 No Request for Oral Argument 4 Case in Brief 4 Indictment 4 No Pre-Trial Motion(s) 4 Plea Bargain 4 Arraignment & Admonishment 5 State's Evidence 5 Judgment & Sentence 5 Motion to Revoke Probation 5 Plea Bargain 5 Judgment Revoking Probation 5 No Permission to Appeal 5 No Motion for New Trial 5 Notice of Appeal 5 Statement of Appellate Jurisdiction 5 THE COURT OF APPEALS DOES NOT HAVE JURISDICTION TO CONSIDER THIS APPEAL.

APPELLANT WAS CONVICTED OF A FELONY OFFENSE AND PUNISHED IN ACCORDANCE WITH A PLEA BARGAIN AGREEMENT. THE NOTICE OF APPEAL DOES NOT STATE THAT APPELLANT IS APPEALING FROM AN ADVERSE RULING TO A PRE-TRIAL MOTION OR THAT THE TRIAL JUDGE GRANTED PERMISSION FOR AN APPEAL AS REQUIRED B Y R ULE 40(b)(1), TEX. R. APP. P.

Prayer 6 Certificate of Service 6

Appellant's Brief on Appeal, Page 2.

TABLE OF AUTHORITIES Curlin v. State, 881 SW2d 513 5 Davis v. State, 870 SW2d 43 5 Duran v. State, 881SW2d 86 5 Fowlerv. State, 874 SW2d 112 5 Lyon v. State, 872 SW2d 732, US , 114 SCt 2684, 129 LE2d 816 5 Penny v. State, 880 SW2d 59 5 Wolfe v. State, 878 SW2d 645 5 Rule 40(b)(1), Texas Rules ofAppellate Procedure 5

Appellant's Brief on Appeal, Page 3.

APPELLANTS BRIEF ON APPEAL

TO THE HONORABLE JUSTICES: LEWIS HORACE BIVINS, Appellant files and presents this brief on appeal.

1. No Request for Oral Argument Appellant's counsel does not request oral argument.

2. Case in Brief

Offense Unauthorized Use of Vehicle Pre-Trial Motion(s) None Plea to Indictment Guilty (Plea Bargain) Judgment Guilty as charged Sentence 10 Years Probation & $300 Fine Motion to Revoke Probation .... Plea of True (Plea Bargain) Date of Sentence August 14,1992 Motion for New Trial None Permission to Appeal None Notice of Appeal August 31, 1992 3. Indictment

Appellant did not challenge the sufficiency of the indictment and it is not fundamentally defective.

4. No Pre-Trial Motion(s) Appellant did not file and obtain adverse an adverse ruling to any pre-trial motion.

5. Plea Bargain Appellant entered into a plea bargain agreement with the State which provided that in exchange for Appellant's plea of guilty the State would recommend the probatedsentenceand fine that was assessed by the Court. The Court accepted and approved the plea bargain agreement and assessed the punishment agreed upon by Appellant, Appellant's counsel and counsel for the State.

6. Arraignment & Admonishment Appellant waived arraignment and entered a plea of guilty. Appellant was admonished in writing and by theCourt in substantial compliance with Article 26.13, CCP.

Appellant's Brief on Appeal, Page 4.

7. State's Evidence

The evidence presented by the State was sufficientto establish guilt as required by Article 1.15, C.C.P. 8. Judgment & Sentence The judgment and sentence convict Appellant of the offensecharged in the indictment and impose a sentence in accordance with the plea bargain agreement.

9. Motion to Revoke Probation

The State filed a motion to revoke probation alleging that Appellant committed a new felony offense while on probation (T 16).

10. Plea of True (Plea Bargain) Appellant entered a plea of true to the State's motion to revoke probation pursuant to a plea bargain agreement.

11. Judgment Revoking Probation The trial judge accepted Appellant's plea of true, revoked Appellant's probation and sentenced Appellant to a term of imprisonment in accordance with the plea bargain agreement.

12. No Motion for New Trial

Appellant did not file a motion for new trial.

13. No Permission to Appeal The record does not reflect that the trialjudge granted permission for Appellant to appeal the conviction to the Court of Appeals.

14. Notice of Appeal Appellant filed a timely general notice of appeal that does not state that Appellant is appealing from an adverse ruling to a pre-trial motion or thatthe trial court granted permission for an appeal to the Court of Appeals.

15. Statement as to Appellate Jurisdiction THE COURT OF APPEALS HAS NO JURISDICTION TO CONSIDER THIS APPEAL.

Appellant was convicted pursuant to a pleabargain agreement and filed a general notice Appellant's Brief on Appeal, Page 5. of appeal which does not state that the trial court granted permission to appeal or that Appellant is appealingfrom adverse rulings to pre-trial motions as required by Rule 40(b)(1), Tex. R. App. P. The record does not reflect that Appellant's plea was involuntary or that the trial court abused its discretion in denying permission to appeal.

The Court of Criminal Appeals determined that compliance with Rule 40(b)(1) is jurisdictional and that the failure to comply with that rule requires the Court of Appeals to dismiss the Appeal. See Lyon v. State, 872 SW2d 732 (Tex.Crim. App. 1994), cert, denied, US , 114 SCt 2684,129 LE2d 816, 62 USLW 3825 (June 13,1994) (No. 93-8795); Davis v. State, 870 SW2d43 (Tex.Crim.App. 1994); Fowler v. State, 874 SW2d 112 (Tex.App. - Austin 1994); Wolfe v. State, 878 SW2d 645 (Tex.App. - Dallas 1994, no pet.); Penny v. State, 880 SW2d 59 (Tex. App. - Dallas, 1994, no pet.) (en banc); Duron v. State, 881 SW2d 86 (Tex.App. - Dallas, 1994) and Curlin v. State, 881 SW2d 513 (Tex.App. - Dallas, no pet.).

PRAYER Wherefore, Appellant prays that the Court of Appeals will review the record of trial and grant any relief to which Appellant may be entitled.

Respectfully submitted,

ROSS TET Counselfor Appellant

Certificate of Service The undersigned counselfor Appellant hereby certifies to the Court of Appeals that a true and correct copy of the foregoing Brief on Appeal was served by hand delivery to John Vance, counsel for the State of Texas on this date.

FEB 2 3 1995 Date ROSS TETER Counsel for Appellant

Appellant's Brief on Appeal, Page6.