Opinion
No. 01-08-00838-CR
Opinion issued April 8, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 337th District Court Harris County, Texas, Trial Court Cause No. 1173490.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
MEMORANDUM OPINION
On September 19, 2008, appellant, David Mark Conklin, agreed to a plea-bargain for the felony offense of possession of cocaine. Appellant admitted to two prior enhancement paragraphs, and the trial court assessed punishment at two years' imprisonment in accordance with the terms of the plea-bargain. In two issues, appellant argues that: (1) his indictment was altered and the alterations constitute a jurisdictional defect and (2) he received ineffective assistance of counsel. We dismiss for want of jurisdiction.
See TEX. HEALTH SAFETY CODE ANN. § 481.115(b) (Vernon 2003) (providingelements for possessing less than one gram of cocaine).
BACKGROUND
On July 3, 2008, the State indicted appellant for possession of cocaine weighing less than one gram. On September 19, 2008, appellant agreed to a plea-bargain that included a recommendation that he serve two years' imprisonment. Appellant received written admonishments in which he waived his right to a court reporter and acknowledged that "the Court must give permission before [he may] appeal any matter in the case except for matters raised by written motions filed prior to trial" and that the trial court could deny him the right to appeal. Appellant also signed a document entitled "Advice of Defendant's Right to Appeal," which indicated that a defendant who enters a plea bargain will have a restricted right to appeal under Texas Rule of Appellate Procedure 25.2. The appellate record does not contain any pre-trial motions. The trial court assessed punishment at two years' imprisonment in accordance with the terms of the plea-bargain. The trial court then certified that appellant did not have the right to appeal because this was a plea-bargain case. On October 3, 2008, appellant filed his notice of appeal with this Court and with the trial court. On October 8, 2008, the trial court denied appellant's motion to appeal.RIGHT TO APPEAL
In his first issue appellant contends that his indictment was amended in favor of the prosecution and that this amendment created a jurisdictional error. In his second issue, he contends that he received ineffective assistance of counsel. Rule 25.2(a)(2) regulates the ability of individuals convicted of a crime to appeal. TEX. R. APP. P. 25.2(a)(2). In relevant part, Rule 25.2(a)(2) provides:In a plea bargain case — that is a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only:
A) those matters that were raised by written motion filed and ruled on before trial, or
B) after getting the trial court's permission to appeal.TEX. R. APP. P. 25.2(a)(2). Here, appellant contends that he may appeal his first issue because the indictment contains what he characterizes as a jurisdictional error. Assuming without deciding that his case includes a jurisdictional error, the Court of Criminal Appeals has held that "the legislature did not expressly or even impliedly make an exception for appeals of jurisdictional issues" that do not comport with the exceptions created by Rule 25.2(a)(2). Griffin v. State, 145 S.W.3d 645, 649 (Tex. Crim. App. 2004); Harris v. State, 149 S.W.3d 285, 288 (Tex. App. — Houston [1st Dist.] 2004, pet. ref'd.). Thus, a defendant must raise even a jurisdictional issue in a pre-trial motion or receive permission from the trial court that accepted the plea bargain in order to bring the issue on appeal. Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006). Similarly, there is no exception for claims of ineffective assistance of counsel when such issues are not raised in a pre-trial motion or the trial court does not provide permission to appeal them. See id. (stating, "Rule 25.2(a)(2) provides that a defendant may appeal only matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal"). Because appellant neither raised these issues in a pre-trial motion and received a ruling on them nor received permission from the trial court to appeal them we conclude that appellant did not have the right to appeal these issues, and we dismiss the appeal for lack of jurisdiction. See id. ("A court of appeals, while having jurisdiction to ascertain whether an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of the basis for the appeal.").