Dismissed, Order issued October 3>i, 1996

In The

(Hourt of Appeals

JTtftlf Itstrtrt 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 a plea of true to the allegations. The trial court sentenced appellant to

ten years in prison and fined her $100. Appellant filed notice of appeal.

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The 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 and appellant adjudicated guilty. Watson v. State, 924

S.W.2d 711, 714-15 (Tex. Crim. App. 1996). The fact that the term of confinement

imposed following adjudication of guilt 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

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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 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 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

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'/lydL*rl~*T>*-f

DEBORAH G. HANKINSON

JUSTICE
NO. 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 NOW the State ofTexas, by and through the Criminal District Attorney

of Dallas County, Texas, and respectfully requests that this appeal be dismissed. In support of

this motion the State would show theCourt the following:

I.

Appellant was convicted offorgery and sentenced to ten years' confinement and

assessed a $100 fine on June 5, 1992. (R.I:58). Notice of Appeal was filed July 1,1992.

(R.I:64). It is ageneral Notice of Appeal in that it does not reflect that the trial court granted

persmission to appeal and it does not reflect that the matters to be appealed were raised by

written pretrial motion overruled by the trial court.
n.

TheTranscript reflects that appellant originally pleaded guilty according to the

terms ofa plea bargain 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). The judgment, 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 to proceed with adjudication ofguilt onMarch 8. 1991.

(R.L44). Appellant pleaded 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 a tenyear probated sentence, (R.I:49), and was ordered to serve 30 days' confinement in Dallas

County Jail as a condition of probation. (R.L53).

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

appellant pleaded true to the State's allegations on June 4,1992. (R.I:56). The judgment, dated

June 5, 1992, reflects that appellant was sentenced to ten years' confinement and 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, 870
SS^S.. :••£ r*&&r5j^^BW'^i^K^iSwf;^ #*S«rr-. ».__ ...

S.W.2d 43, 45-46 (Tex. Crim. App. 1994) held thata 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 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 a case isinsufficient to conferjurisdiction on an appellate court.

Davis. 870S.W.2d at 46. Moreover, an appellate courtmay not permit a defendant to amend

a notice of appeal 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 with rule 40(b)(1), appellant's contention must either have been raised

by awritten pre-trial motion and the notice ofappeal must reflect that fact in writing (§ge Davis,

870 S.W.2d at 45, 46-47), or appellant alternatively must have received the permission of the

trial judge to appeal the sufficiency ofthe evidence underlying his guilty plea. TEX. R. APP.

P. 40(b)(1). Ifsuch permission was received, that fact must be evident on the face ofhis notice

ofappeal. TEX. R. APP. P. 40(b)(1). Appellant's notice ofappeal isgeneral because itlacks

the necessary recitations, and this Court therefore lacks jurisdiction 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 lacks jurisdiction to consider this appeal. Brief for 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 of the foregoing Motion has been served on Ross

Teter, Attorney for Appellant, at 311 N. Stemmons Freeway, Suite 100, Dallas, Texas, 75207-

4397, by depositing same in the United States mail on September 19, 1996.

pa$Y^u^(3_ @y4<<*

LORRAINE A. RAGGIO

4