Smith v. State, 05-91-01341-CR

• Court: Court of Appeals of Texas
• Citation: 957 S.W.2d 571
• Docket Number: No. 05-91-01341-CR,05-91-01341-CR
• Parties: Carl Dewayne SMITH, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 27 August 1997

Page 571

957 S.W.2d 571 Carl Dewayne SMITH, Appellant,
v.
The STATE of Texas, Appellee. No. 05-91-01341-CR. Court of Appeals of Texas,
Dallas. Aug. 27, 1997.

Page 573

E. Brice Cunningham, E. Brice Cunningham, P.C., Dallas, for Appellant.

Lorraine Raggio, Asst. Dist. Atty., Dallas., for State.

Before LAGARDE, WHITTINGTON and JAMES, JJ.

OPINION

LAGARDE, Justice.

Carl Dewayne Smith appeals his conviction of forgery. In a single point of error, appellant contends that his conviction must be reversed and this cause remanded for a new trial because the statement of facts from his October 11, 1989 deferred adjudication hearing was lost or destroyed through no fault of his own. For reasons that follow, we dismiss this appeal.

Appellant was indicted for the August 9, 1989 offense of forgery. Appellant waived his right to a jury, pleaded guilty pursuant to a plea bargain agreement with the State, and signed a written judicial confession that tracked the language of the indictment. On October 11, 1989, the trial court held a hearing in which the trial court accepted appellant's plea, followed the plea bargain agreement, deferred adjudication of guilt, and placed appellant on deferred adjudication probation for three years, subject to various conditions.

On June 20, 1991, the State filed a motion to proceed with adjudication of guilt on the grounds that appellant had violated the terms of his probation. Appellant pleaded true to the State's allegations. On July 18, 1991, the trial court found the State's allegations true, accepted appellant's guilty plea entered on October 11, 1989, adjudicated appellant's guilt, and sentenced appellant to ten years' confinement and a $500 fine.

On August 9, 1991, appellant filed a motion for new trial. On August 15, 1991, appellant filed a notice of appeal from the July 18, 1991 adjudication. In the notice of appeal, appellant claimed he was indigent and requested that the trial court order the court reporter to prepare a statement of facts reflecting all evidence presented in this cause. On June 26, 1996, the court reporter filed an affidavit with this Court stating that he could not locate the court reporter who reported the October 11, 1989 proceeding. This Court ordered the trial court to conduct a hearing to determine whether the statement of facts was available. The trial court held the hearing and found that the statement of facts from the October 11, 1989 proceeding had

Page 574

been lost or destroyed through no fault of the defendant and the parties could not agree on a statement of facts. This Court adopted the trial court's findings.

In a single point of error, appellant argues we must reverse his conviction and remand for a new trial because the statement of facts from his October 11, 1989 plea hearing was lost or destroyed through no fault of his own.

JURISDICTION

Unless the power or authority of a court to perform a contemplated act can be found in the Constitution of this State or laws enacted thereunder, that court is without "subject matter jurisdiction" to so perform. Galitz v. State, 617 S.W.2d 949, 951 (Tex.Crim.App.1981). Thus, the power of this Court to perform the contemplated act of considering an appeal from a criminal conviction obtained in a district court of this State is solely determined by legislative authorization; in short, the right to appeal in this State is a statutory right. Id. And so it was until 1977 that a defendant in any criminal action had the right to appeal. Id; see also TEX.CODE CRIM. PROC. ANN. art. 44.02 (Vernon 1979). But then this broad grant of the right to appeal was narrowed for would-be appellants who choose to enter pleas of guilty before the trial court and are sentenced within the terms of a plea bargain agreement. For those appellants, new jurisdictional requisites were established by amendment, effective August 29, 1977, which added a proviso to article 44.02 of the code of criminal procedure. Galitz, 617 S.W.2d at 951. The court of criminal appeals eventually decided that a defendant's failure to comply with the proviso to article 44.02 was jurisdictional, and a defendant had to obtain the trial court's permission to appeal a nonjurisdictional defect occurring before or after entry of the plea. Lyon v. State, 872 S.W.2d 732, 735 (Tex.Crim.App.), cert. denied, 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994). By order dated December 18, 1985, the court of criminal appeals repealed the proviso to article 44.02 and replaced it with rule 40(b)(1) of the Texas Rules of Appellate Procedure, effective September 1, 1986. Id. In promulgating rule 40(b)(1), the court of criminal appeals acted on the assumption that the body of caselaw construing the proviso to article 44.02 would prevail and still control. Id. Compliance with rule 40(b)(1) is jurisdictional. Id.

Rule 40(b)(1)

A defendant who receives deferred adjudication pursuant to a negotiated plea bargain and is later adjudicated guilty must comply with the extra notice requirements of rule 40(b)(1). Watson v. State, 924 S.W.2d 711, 714 (Tex.Crim.App.1996); Lyon, 872 S.W.2d at 736; Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App.1994); Miller v. State, 879 S.W.2d 336, 337 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd). Rule 40(b)(1) states in relevant part:

... [I]f the judgment was rendered upon [the defendant'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 prosecution 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 shall specify that those matters were raised by written motion and ruled on before trial.

TEX.R.APP. P. 40(b)(1) (emphasis added).

Under the restrictions of rule 40(b)(1), a class of appellants is precluded from appealing. TEX.R.APP. P. 40(b)(1); see Galitz, 617 S.W.2d at 952 n. 8 (when the record reflects either no plea bargain agreement, no personal assent by the defendant to the recommendation of the prosecutor, or a plea to a jury, rule 40(b)(1) may not operate to deny the defendant his right to appeal ). Cf. Broggi v. Curry, 571 S.W.2d 940, 940 (Tex.Crim.App.1978) (failure to ascertain if the petitioner personally consented to the recommended punishment prevents article 44.02 from being used to prevent appeals); cf. Decker v. State, 570 S.W.2d 948, 950 (Tex.Crim.App. [Panel Op.] 1978) (trial court could not deny the defendant his right to appeal under article 44.02 when, although appellant's counsel agreed to the recommended

Page 575

punishment, there was no showing that defendant personally agreed). Failure to comply with the provisions of rule 40(b)(1) prevents an appeal under the proviso, but the defendant may not be denied his appeal under the general right of appeal granted by article 44.02. Padgett v. State, 764 S.W.2d 239, 241 (Tex.Crim.App.1989) (per curiam) (referring to TEX.CODE CRIM. PROC. ANN. art. 44.02). In other words, when an appellant personally agrees to the punishment recommended and the punishment assessed is within that recommended by the prosecution, an appellant's right of appeal is restricted. If he does not fall within that restricted class, he has an unrestricted general right of appeal.

In our case, appellant personally agreed to the punishment recommended and assessed. The transcript contains a document styled, "Plea Bargain Agreement," which appellant personally signed. In this document, appellant agreed to plead guilty, to testify, and to submit to three years' deferred adjudication probation. With this personal agreement to the punishment recommended and assessed, appellant must have the trial court's permission to appeal. Cf. Padgett, 764 S.W.2d at 241; see also Watson, 924 S.W.2d at 714 (order of deferred adjudication is punishment, thus the restrictions of rule 40(b)(1) apply).

An appeal to which the restrictions of rule 40(b)(1) apply is limited to matters which the trial judge allows, to pretrial motions, and to jurisdictional defects. Watson, 924 S.W.2d at 714. A court of appeals errs if it reaches the merits of nonjurisdictional complaints raised by an appellant without permission of the trial judge or benefit of a written motion filed before trial. Id. at 715; Lyon, 872 S.W.2d at 732; Davis, 870 S.W.2d at 43.

In this case, the trial judge did not allow appellant to appeal, appellant is not appealing a matter raised in a pretrial motion, and appellant does not allege a jurisdictional defect. Instead, appellant is seeking reversal based solely on the destruction of the statement of facts from his October 11, 1989 plea hearing. Appellant has not complied with the extra notice requirements of rule 40(b)(1). See TEX.R.APP. P. 40(b)(1). We, therefore, do not have jurisdiction over this appeal.

Remedy for Affected Appellants

An appellant who is precluded from appealing by the restrictions contained in rule 40(b)(1) is not without remedy. When a trial judge denies an appellant the right to appeal from his conviction under rule 40(b)(1), the appellant, under certain circumstances, may file an application for writ of mandamus to compel the trial judge to allow the appeal. See Broggi, 571 S.W.2d at 940 (mandamus to accord right of appeal to a defendant who was not shown by the record to have personally consented to a plea bargain implemented by the court). Here, appellant did not have the trial court's permission to appeal nor did he file an application for writ of mandamus to compel the trial judge to give him permission.

Untimely Notice of Appeal

We also have no jurisdiction over this appeal because appellant's notice of appeal was not timely. Before 1987, a defendant could not appeal from an order deferring adjudication of guilt. See Dillehey v. State, 815 S.W.2d 623, 626...