Summary
In Long v. State, 980 S.W.2d 878, 878 (Tex.App.-Fort Worth 1998, no pet.), and Elizondo v. State, 979 S.W.2d 823, 824-825 (Tex.App.-Waco 1998, no pet.), the Fort Worth and Waco courts determined that a defendant cannot appeal the voluntariness of a plea agreement without obtaining the trial court's permission first.
Summary of this case from Davis v. StateOpinion
No. 02-98-189-CR.
October 15, 1998.
Appeal from the 16th District Court, Denton County.
Before CAYCE, C.J., and BRIGHAM and HOLMAN, JJ.
OPINION
Appellant pleaded guilty to two counts of indecency with a child. Under a plea agreement with the State, the trial court deferred adjudicating appellant's guilt and placed him on five years of community supervision. Appellant timely perfected appeal from the order deferring adjudication of guilt.
Appellant's notice of appeal, however, is deficient in that it does not state that the trial court granted permission to challenge the voluntariness of his plea. See TEX.R.APP. P. 25.2 (b)(3). In a letter dated June 11, 1998, this court asked appellant to show cause for continuing his appeal. Appellant responded that he intended to challenge the voluntariness of his plea and that, under this court's recent opinion in Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex.App. — Fort Worth 1998, no pet.), he could still do so without trial court permission. Appellant misreads Villanueva.
In Villanueva the appellant filed his notice of appeal under former rule 40 (b)(1). See id., at 694. In deciding whether injustice or infeasibility would occur by applying rule 25.2 (b)(3), we concluded that under rule 40 (b)(1), an appellant was entitled to challenge the voluntariness of his plea with a general notice of appeal, see Flowers v. State, 935 S.W.2d 131, 134 (Tex.Crim.App. 1996), and that under rule 25.2 (b)(3), he cannot. See Villanueva at 694-96. Therefore, we held that applying the new rule would work injustice to appellant because it would deprive him of the opportunity of challenging the voluntariness of his plea. See id.
See Court of Criminal Appeals Final Approval, 60 TEX. B.J. 876 (Tex.Crim.App. Aug. 1997).
The distinction between Villanueva and the present case is the timing of filing of the notice of appeal. Because appellant in this case filed his notice of appeal under the new rule, we do not have the option of applying the former rule. As we stated in Villanueva the right to appeal from a valid plea bargain agreement is jurisdictionally limited by rule 25.2 (b)(3). See TEX.R.APP. P. 25.2 (b)(3). Under that rule, an appellant's notice of appeal must either specify that the appeal is from a jurisdictional defect, specify that the substance of the appeal was raised by written motion and ruled on before trial, or state that the trial court granted permission to appeal. See id; Villanueva at 695.
See supra note 1.
Because appellant's sentence did not exceed that to which he agreed and because he filed a general notice of appeal, we are without jurisdiction. Accordingly, we dismiss for want of jurisdiction. See Villanueva at 695-96.