Danny Ray Maxey v. State ( 2002 )

                                           NUMBER 13-01-716-CR

                                  COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                                    CORPUS CHRISTI

DANNY RAY MAXEY,                                                                        Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                        Appellee.

                             On appeal from the Criminal District Court

                                         of Jefferson County, Texas.

                                         O P I N I O N

                 Before Chief Justice Valdez and Justices Dorsey and Rodriguez

                                           Opinion by Justice Dorsey

  

Pursuant to a plea-bargain agreement appellant, Danny Ray Maxey, pleaded no contest to attempted assault-family violence, a misdemeanor.  The trial court followed the plea bargain and sentenced him to 180 days in the Jefferson County Jail.  By two points of error appellant complains of ineffective assistance of counsel and that the trial court did not properly admonish him.  We dismiss the appeal for want of jurisdiction.

                                                                 Our Jurisdiction

Because this attempted appeal arises from a plea-bargain agreement we must decide whether we have jurisdiction to review the points of error.  Yarbrough v. State, 57 S.W.3d 611, 615 (Tex. App.CTexarkana 2001, pet. ref=d) (appellate court has the obligation to determine its own jurisdiction).  Although the restrictions found in Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure do not apply to misdemeanor appeals, Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001) (Rule 25.2(b)(3) "applies only to plea‑bargained, felony cases"); Russell v. State, 74 S.W.3d 887, 889 (Tex. App.BWaco 2002, pet. filed), the scope of appellant's attempted appeal is limited by the proviso to article 44.02 of the Texas Code of Criminal Procedure.  That proviso reads:

before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. . . .

Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon Supp. 2002).  Thus article 44.02 restricts the scope of an appeal from a plea‑bargained misdemeanor conviction to (1) issues on which the trial court has granted permission to appeal and (2) issues raised by written pre‑trial motion.  Russell, 74 S.W.3d at 890.  See Taylor v. State, 916 S.W.2d 680, 683 (Tex. App.BWaco 1996, no pet.).  Because Rule 25.2(b)(3) does not apply to misdemeanor appeals a defendant appealing a plea‑bargained misdemeanor conviction may also raise jurisdictional issues under a general notice of appeal.  See Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994); but see White v. State, 61 S.W.3d 424, 429 (Tex. Crim. App. 2001) (general notice of appeal does not properly invoke appellate court's jurisdiction to consider jurisdictional issue in appeal from plea‑bargained felony conviction).

Here, appellant requested permission to appeal, alleging ineffective assistance of counsel.  The trial court, however, did not grant him permission to appeal. Appellant=s attempted appeal does not involve the court's denial of a written, pre‑trial motion, nor does it involve a jurisdictional defect.  See Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994) (Ineffective assistance of counsel is not a jurisdictional defect.); Lucas v. State, 71 S.W.3d 781, 782 (Tex. App.BTexarkana 2002, no pet.) (inadequate admonishments are not jurisdictional defects). Therefore we hold that appellant=s notice of appeal fails to confer jurisdiction on this Court.

We DISMISS the appeal for want of jurisdiction.                                             

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 19th day of September, 2002.