Dismissed, Order issued October 3>i, 1996

In The 

### (Hourt of Appeals 

### JTtftlfItstrtrt of ©*xas at Dallas No. 05-92-02080-CR DURETTA DARTHARD, Appellant
V. THE STATE OF TEXAS, Appellee OPINION AND ORDER 

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Before Chief Justice Thomas and Justices Maloney and Hankinson 

### Duretta Darthard appeals her conviction for forgery. As part of a plea bargain 

### agreement, appellant pleaded guilty and was placed on deferred adjudication probation for three years and fined $100. Thirteen months later, the State filed a motion to adjudicate guilt. Appellant pleaded true to the allegations in the motion, and the trial court revoked appellant's probation and adjudicated her guilty. The trial court then placed appellant on 

### ten years probation. In May 1992, the State filed a motion to revoke probation, and appellant entered aplea oftrue to the allegations. The trial court sentenced appellant to tenyears inprison and fined her $100. Appellant filed notice ofappeal. ft >Cv J IThe State filed a motion to dismiss the appeal on the ground that his Court does not have jurisdiction because appellant filed only a general notice of appeal. In her brief, appellant concedes this Court has no jurisdiction pursuant to rule 40(b)(1) of the Texas Rules of Appellate Procedure. 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 shallspecify 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 conferjurisdiction 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). Rule 40(b)(1) applies to cases in which appellant is placed on deferred adjudication probation pursuant to a plea agreement and the probation issubsequently revoked andappellant adjudicated guilty. Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996). The fact that the term of confinement imposedfollowing adjudication ofguilt wasnot recommended by the State does not amount to a refusal of the trial court to implement the plea bargain agreement. Watson, 924S.W.2d

at 714. In this case, appellant entered her original plea pursuant to a negotiated plea bargain. The punishment assessed by the trial court did not exceed that agreed to by

-2-appellant and her attorney and recommended by the State. Further, appellant filed only a general notice of appeal. According to appellant's brief filed by retained counsel, Ross Teter, appellant was admonishedin writing and by the Court in substantialcompliance 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 general notice of appeal, this Court does not have jurisdiction over this appeal. Accordingly, we DISMISS the appeal for lack of jurisdiction.

Do Not Publish Tex. R. App. P. 90

-3- '/lydL*rl~*T>*-f DEBORAH G. HANKINSON JUSTICENO. 05-92-02080-CR

DURETTA DARTHARD VS. THE STATE OF TEXAS § IN THE COURT OF APPEALS § FOR THE FIFTH DISTRICT FILED IN § OF TEXAS AT DALLAS COURT OF APPEALS 

## SEP 191996 MARIA SANCHEZ, Clerk ON APPEAL FROM THE 363RD JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS

IN CAUSE NO. F89-97533-W
STATE'S MOTION TO IWSMTSS THE APPFAT, PURSUANT TO RULE 40(b)(X) TO THE HONORABLE JUDGES OF SAID COURT: COMES NOWthe State ofTexas, byand through the Criminal District Attorney 

### ofDallas County, Texas, and respectfully requests that this appeal be dismissed. In support of this motion the State would show the Court thefollowing:

I. 

### Appellantwas convicted of forgery and sentenced to ten years' confinementand assessed a $100 fine on June 5, 1992. (R.I:58). Notice ofAppeal was filed July 1,1992. 

## (R.I:64). Itis ageneralNotice ofAppealin thatitdoes notreflectthatthe trial court granted 

## persmission to appeal and it does not reflect that the matters to be appealed were raised by written pretrial motion overruled bythe trial court.n. TheTranscript reflects that appellant originally pleaded guilty according to the 

### terms ofapleabargain agreement with the State. (R.I:36). The State and appellant agreed that 

### appellant would plead guilty in exchange for a recommendation of three years' deferred adjudication probation. The plea bargain agreement is signed by appellant and dated February 9, 1990. Appellant also signed the Court's Admonition ofStatutory and Constitutional Rights and Defendant's Acknowledgment. (R.I:37). Thejudgment, dated February 9, 1990, indicates 

### that appellant was placed on three years probation in accordance with the terms of the plea bargain agreement. (R.I:38). The State filed a motion toproceed with adjudication ofguilt onMarch 8. 1991. 

### (R.L44). Appellantpleaded true to the State's allegations on March 28, 1991. (R.L47). The 

### judgment, dated March 28, 1991, indicates that appellant was found guilty and received aten

### year probated sentence, (R.I:49), and was ordered to serve 30 days' confinement in Dallas County Jail as a condition ofprobation. (R.L53). 

### On May 5, 1992, the State filed a motion to revoke probation. (R.I:62). 

### appellantpleaded trueto the State's allegations onJune4,1992. (R.I:56). Thejudgment, dated June 5, 1992, reflects that appellantwas sentenced to ten years' confinementand assessed afine of $100. (R.L58).

m. 

### The Court ofCriminal Appeals inLyon v. State. 872 S.W.2d 732, 735-36 (Tex. 

### Crim. App. 1994), s&LJkEM, 114 S. Ct. 2684, 129 L. Ed. 2d 816, and PaviS V, State, 870SS^S.. :••£ r*&&r5j^^BW'^i^K^iSwf;^ #*S«rr-. ».__ ...

S.W.2d 43, 45-46 (Tex. Crim. App. 1994) held thata general notice ofappeal in anappeal from a negotiated plea is not sufficient to conferjurisdiction on an appellate court. This holding applies to nonjurisdictional defects which occur both before and after the plea. Davis. 870 S.W.2d at 45-46. This holding 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 ofappeal insuch acase isinsufficientto conferjurisdiction on an appellate court. Davis. 870S.W.2d at 46. Moreover, an appellate courtmay notpermit a defendant to amend a notice ofappeal out oftime. Davis. 870 S.W.2d at47. InWatSQn y, State, 924 S.W.2d 711 

### (Tex. Crim. App. 1996), the Court ofCriminal Appeals extended the reach ofLvon and Davis (and rule 40(b)(1)) to cases where the State and defendants agreed to deferred adjudication in a plea bargain.

### To comply withrule 40(b)(1), appellant's contentionmust eitherhavebeen raised 

### by awrittenpre-trial motionand the notice of appeal mustreflectthatfact inwriting (§geDavis, 870 S.W.2d at45, 46-47), or appellant alternatively must have received the permission ofthe 

### trialjudge to appeal the sufficiency ofthe evidence underlying his guilty plea. TEX. R. APP. 

### P. 40(b)(1). Ifsuchpermission was received, that fact mustbeevident on the face of his notice ofappeal. TEX. R. APP. P. 40(b)(1). Appellant's notice ofappeal isgeneral because itlacks the necessary recitations, and this Court therefore lacksjurisdiction ofappellant's claims. See TEX. R. APP. P. 40(b)(1); DasdS, 870 S.W.2d at 46-47; Penny Y. State, 880 S.W.2d 59, 61 

### (Tex. App.
- Dallas 1994, no pet.). Furthermore, appellant, in his brief, concedes that this Court lacksjurisdiction to consider this appeal. Brieffor Appellant at 5. Appellant's appeal
must be dismissed.WHEREFORE, PREMISES CONSIDERED, the State respectfully requests that this appeal be dismissed for want of jurisdiction. Respectfully submitted,

LORRAINE A. RAGGIO ASSISTANT DISTRICT ATTORNEY STATE BAR NO. 00792783 FRANK CROWLEY COURTS BUILDING LOCK BOX 19 DALLAS, TEXAS 75207-4399 (214) 653-3661

CERTIFICATE OF SERVICE
I hereby certify that a copy ofthe foregoing Motion has been served on Ross 

### Teter, Attorneyfor Appellant, at 311 N. Stemmons Freeway, Suite 100, Dallas, Texas, 75207- 4397, by depositing same in the United States mail on September 19, 1996. 

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LORRAINE A. RAGGIO

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