Walter v. State
| Decision Date | 28 October 1997 |
| Docket Number | No. 05-91-01660-CR,05-91-01660-CR |
| Citation | 970 S.W.2d 27 |
| Parties | Danielle Marie WALKER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
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.
Danielle Marie Walker appeals her conviction for unauthorized use of a motor vehicle. In a single point of error, appellant contends that her conviction must be reversed and this cause remanded for a new trial because the statement of facts from her July 26, 1985 deferred adjudication hearing was lost or destroyed through no fault of her own. For reasons that follow, we dismiss this appeal.
Appellant was indicted for the June 12, 1985 offense of unauthorized use of a motor vehicle. Appellant waived her 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. The trial court followed the plea bargain, deferred adjudication of guilt, and placed appellant on deferred adjudication probation for four years, subject to various conditions.
On July 31, 1986 and again on July 24, 1989, the State filed a motion to proceed with adjudication of guilt on the ground that appellant had violated the terms of her deferred adjudication probation. On May 23, 1991, appellant pleaded true to the State's allegations. On the same day, the trial court found the State's allegations true, accepted appellant's guilty plea entered on July 26, 1985, found appellant guilty, and sentenced appellant to ten years' confinement and a five hundred dollar fine.
On June 20, 1991, appellant filed a motion for new trial. On August 12, 1991, appellant timely filed a notice of appeal in which she claimed she 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. 1 On June 26, 1996, the official court reporter who reported the July 26, 1985 proceeding filed an affidavit with this Court stating that his notes from that proceeding had been destroyed. Appellant filed no motion to supplement the record supported by this affidavit. This Court ordered the trial court to conduct a hearing to determine whether the July 26, 1985 statement of facts was available. On October 1, 1996, the trial court held the hearing and found that the statement of facts had been destroyed through no fault of the defendant, and that the parties could not agree on a statement of facts. The trial court took judicial notice of the court reporter's June 26, 1996 affidavit. This Court adopted the trial court's October 1, 1996 findings. Appellant did not file a motion to supplement the record supported by the court reporter's affidavit. This Court has before it the live testimony of the court reporter in the statement of facts of the trial court's October 1, 1996 hearing, not because of due diligence on appellant's part, but because of this Court's own initiative.
In a single point of error, appellant argues she is entitled to a reversal of her conviction and a new trial because the statement of facts from her original plea hearing in 1985 was lost or destroyed through no fault of her own.
A defendant who is convicted on a plea of guilty and punished in accordance with a recommendation of the prosecuting attorney may complain on appeal only of those matters allowed by the trial judge or raised by written motion prior to trial. See TEX.R.APP. P. 40(b)(1) (former rules); Watson v. State, 924 S.W.2d 711, 713 (Tex.Crim.App.1996). The defendant's notice of appeal must affirmatively state that the trial court granted permission to appeal or specify that the matters appealed were raised by written motion and ruled on before trial. TEX.R.APP. P. 40(b)(1) (former rules); Curlin v. State, 881 S.W.2d 513, 516 (Tex.App.--Dallas 1994, no pet.). A general notice of appeal does not confer jurisdiction on a court of appeals to consider nonjurisdictional defects or errors that occur before or after the entry of a negotiated plea. Curlin, 881 S.W.2d at 516. 2
Rule 40(b)(1) applies to appeals from deferred adjudication orders. See Watson, 924 S.W.2d at 715. A defendant who pleads guilty in exchange for deferred adjudication probation is bound by the restrictions of rule 40(b)(1) when he is later adjudicated and sentenced. Watson, 924 S.W.2d at 714.
In our case, appellant personally agreed to the punishment recommended and assessed. The transcript contains a document styled, "Plea Bargain Agreement," signed by appellant personally. In this document, appellant agreed to plead guilty, to testify, and to be placed on four 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 v. State, 764 S.W.2d 239, 241 (Tex.Crim.App.1989); see also Watson, 924 S.W.2d at 714 (). However, the notice of appeal does not reflect that the trial judge allowed appellant to appeal, or that appellant is appealing a matter raised in a pretrial motion. Appellant does not allege a jurisdictional defect. Instead, appellant is seeking reversal based solely on the destruction of the statement of facts from her July 26, 1985 hearing. Appellant has not complied with the extra notice requirements of former rule 40(b)(1). See TEX.R.APP. P. 40(b)(1) (former rules). Because this Court does not have jurisdiction over this appeal, this appeal is dismissed.
I cannot agree with the majority's conclusion that an indigent appellant who pleads guilty pursuant to a negotiated plea bargain with the State is only entitled to appeal the denial of a statement of facts if that appellant first files a specific notice of appeal. See TEX.R.APP. P. 40(b)(1) (former rules). Because I believe reviewing a statement of facts is a condition precedent to a meaningful appeal, I dissent.
Appellant was indicted for unauthorized use of a motor vehicle. On July 26, 1985, she pleaded guilty pursuant to a negotiated plea bargain with the State and was placed on four years' deferred adjudication probation.
On July 24, 1989, the State filed a motion to proceed with an adjudication of guilt, alleging appellant had violated the terms of her probation. On May 23, 1991, the State delivered a copy of the motion to appellant. That same day, the trial judge held a hearing on the motion. At the conclusion of the hearing, the trial judge found the allegations in the State's motion true, found appellant guilty of the underlying offense, and assessed punishment at ten years' confinement and a $500 fine.
Appellant filed a timely motion for new trial and notice of appeal. In her notice of appeal, she claimed she was indigent and asked the trial judge to order the court reporter to prepare a statement of facts. Appellant included a certificate of service, stating that a copy of the notice and request for statement of facts was sent to the court reporter.
When no brief was filed within the time allowed, this Court ordered the trial judge to conduct a hearing to determine why no brief had been filed and whether appellant was indigent and wanted to pursue her appeal. Pursuant to that order, the trial judge held a hearing and determined that appellant was indigent and wanted to pursue her appeal. The trial judge further found the record in the cause was incomplete because the original plea hearing had not been transcribed.
In June 1996, the court reporter who recorded the plea proceeding filed an affidavit with this Court asserting that he had made a diligent search for his notes of the July 1985 proceeding, but the notes had been destroyed. Six weeks later, appellant filed a brief asserting she had been denied a statement of facts through no fault of her own. We then ordered a hearing to determine whether the statement of facts was available. The trial judge held the hearing on October 1, 1996 and found: (1) the court reporter's notes and records from the July 26, 1985 hearing were not available; (2) the missing portion of the statement of facts had been lost or destroyed; (3) appellant was not at fault for the loss of the statement of facts; and (4) the parties could not agree on a statement of facts. On October 25, 1996, this Court adopted the trial court's findings.
In her sole point of error, appellant contends she is entitled to a new trial because the statement of facts from the July 1985 hearing has been lost or destroyed through no fault of her own. The State responds that we need not reverse on this point because appellant failed to comply with rule 50(e) by (1) making a timely request to the court reporter for the statement of facts, or (2) using due diligence to secure a complete statement of facts. The majority contends we must dismiss this appeal because we do not have jurisdiction to address appellant's complaint. 1 For the following reasons, I disagree.
According to the majority, an indigent appellant who complies with all appellate requirements to obtain a record, yet is denied a statement of facts, would not be entitled to a review by this Court. The majority bases its holding on the limitations prescribed by rule 40(b)(1). While I agree that appellant is required to comply with rule 40(b)(1) unless she intends to appeal jurisdictional defects or the voluntariness of her guilty plea, I believe she must first have a record to review to determine whether any such error exists. Rather than interpret one rule of procedure in isolation as the majority has, I believe it is necessary to look at the framework of the rules as a whole. 2
Under rule 50(a) of the rules of appellate procedure, the record on...
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