Ramos v. State, 14-94-00525-CR

• Citation: 928 S.W.2d 157
• Decision Date: 20 June 1996
• Docket Number: No. 14-94-00525-CR,14-94-00525-CR
• Parties: Armando Miranda RAMOS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 157

928 S.W.2d 157 Armando Miranda RAMOS, Appellant,
v.
The STATE of Texas, Appellee. No. 14-94-00525-CR. Court of Appeals of Texas,
Houston (14th Dist.). June 20, 1996.

Page 158

Robert G. Inger, Houston, for appellants.

Alan Curry, Houston, for appellees.

Before YATES, FOWLER and O'NEILL, JJ.

OPINION

YATES, Justice.

Appellant, Armando Miranda Ramos, appeals the trial court's decision to revoke his probation. In one point of error, appellant contends the trial court failed to admonish him as to the proper punishment range as required by Article 26.13 of the Texas Code of Criminal Procedure. We affirm.

Pursuant to a plea agreement, appellant entered a plea of guilty to possession of less than twenty-eight grams of a controlled substance, which is a second degree felony. TEX. HEALTH & SAFETY CODE ANN. § 481.115 (Vernon 1992). ¹ The trial court deferred adjudication and placed appellant on probation for ten years. The State filed an application to proceed to final adjudication alleging, among other things, that appellant (1) committed a new offense of aggravated delivery of a controlled substance by offer to sell; and (2) failed to complete his court-required community service. At a hearing on the motion, appellant entered a plea of true to the allegation that he failed to complete the required community service. The trial court found the allegations in the State's motion to be true and revoked appellant's probation. The trial court then assessed punishment at ten years confinement in the Institutional Division of the Texas Department of Criminal Justice.

In his sole point of error, appellant contends the trial court did not substantially comply with Article 26.13 of the Texas Code of Criminal Procedure because the court erroneously admonished him as to the possible punishment range. TEX.CODE CRIM. PROC. ANN. art. 26.13. As a preliminary matter, the State contends this Court is without jurisdiction to entertain appellant's appeal because appellant entered a plea of guilty with an agreed recommendation and filed a general notice of appeal. TEX.R.APP. P. 40(b)(1). ²

Page 159

Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994) (citing Davis v. State, 870 S.W.2d 43 (Tex.Crim.App.1994)).

There exists a conflict among the courts of appeals concerning whether Rule 40(b)(1) precludes a defendant from appealing the trial court's failure to properly admonish him as to the consequences of his plea of guilty pursuant to article 26.13 of the code of criminal procedure. Recently, in Penny v. State, 880 S.W.2d 59 (Tex.App.--Dallas 1994, no pet.), the Dallas Court of Appeals held that because a general notice of appeal confers jurisdiction on a court of appeals to consider only jurisdictional issues, an appellant could not appeal any alleged error that affects the validity of the guilty plea, including issues concerning the voluntariness of the plea. Id. at 61. Likewise, at least two other courts of appeals have concluded that Rule 40(b)(1) precludes a defendant from appealing the failure to admonish under article 26.13, Tillman v. State, 919 S.W.2d 836, 838-39(Tex.App.--Fort Worth, March 28, 1996, petition...