TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 69947, HONORABLE CHARLES D. CARVER, JUDGE PRESIDING
The State argues that this Court is without jurisdiction because appellant did not file a written notice of appeal. Tex. R. App. P. 25.2(a), (b). We deem the timely filed pro se "motion to grant appeal" adequate to show appellant's desire to appeal. Tex. R. App. P. 25.2(b)(2). The State's jurisdictional challenge is overruled.
In his only point of error, appellant contends his guilty plea was not knowingly and voluntarily made because he relied on erroneous advice by trial counsel. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). The State asserts that this contention is not properly before us because appellant's notice of appeal does not comply with Texas Rule of Appellate Procedure 25.2(b)(3). This rule is derived from the proviso clause of former Texas Rule of Appellate Procedure 40(b)(1). The Court of Criminal Appeals held that a defendant's right to challenge the voluntariness of a bargained guilty plea was not dependent on compliance with the rule 40(b)(1) proviso. Flowers v. State, 935 S.W.2d 131, 133-34 (Tex. Crim. App. 1996); see Moss v. State, 938 S.W.2d 186, 189 (Tex. App.--Austin 1997, pet. ref'd). The State does not mention Flowers in its brief or argue that the holding in that opinion does not apply to this appeal. We will address the merits of appellant's claim.
Before pleading guilty, appellant was admonished as required by statute. Tex. Code Crim. Proc. Ann. art. 26.13(a) (West 1989). Among other things, appellant was told that if the plea bargain was followed, he could not appeal without the court's permission. Id. art. 26.13(a)(3). Appellant told the court he understood this. Appellant's plea was accepted and the proceeding was recessed to allow the preparation of a presentence report. The parties appeared before the court for sentencing one month later. After sentence was imposed, appellant stated, "My lawyer has informed me that I have 30 days to appeal." The court responded, "Sir, you cannot appeal unless you get permission from this court, which I went over with you at the time that you entered your plea of guilty." Appellant then told the court he needed a different lawyer "because he told me that I had 30 days." The court again reminded appellant of what he had been told when he pleaded guilty. The court then denied permission to appeal.
Appellant argues that "it is uncontroverted that defense counsel misinformed Appellant that he had 30 days to appeal his case, when in fact Appellant could not appeal without first obtaining the permission of the trial court." Appellant urges that as a result of this misrepresentation, he "could not have had an accurate understanding of the consequences of his plea and therefore the plea was not knowingly and voluntarily entered."
Appellant's argument is based on the erroneous premise that he could not appeal without the court's permission. In fact, appellant did not require the court's permission to appeal rulings on written pretrial motions, jurisdictional issues, and the voluntariness of his plea. See Flowers, 935 S.W.2d at 133-34; Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994); Moss, 938 S.W.2d at 189. While this right to appeal was limited in scope, appellant does not contend that he was misled in that regard.
Counsel's advice that appellant had thirty days to perfect appeal was correct, assuming no motion for new trial was filed. Tex. R. App. P. 26.2(a)(1). There is no evidence that appellant was misinformed of his rights by counsel, and therefore no basis for appellant's contention that his guilty plea was involuntary. The point of error is overruled.
The judgment of conviction is affirmed.
John Powers, Justice
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: November 19, 1998
Do Not Publish
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FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTYNO. 69947, HONORABLE CHARLES D. CARVER, JUDGE PRESIDING
Appellant Leonardo Gomez Oliva pleaded guilty and judicially confessed to attempted murder. See Tex. Penal Code Ann. §§ 15.01, 19.02 (West 1994). The criminal district court adjudged appellant guilty and sentenced him, as agreed, to imprisonment for ten years.
The State argues that this Court is without jurisdiction because appellant did not file a written notice of appeal. Tex. R. App. P. 25.2(a), (b). We deem the timely filed pro se "motion to grant appeal" adequate to show appellant's desire to appeal. Tex. R. App. P. 25.2(b)(2). The State's jurisdictional challenge is overruled.
In his only point of error, appellant contends his guilty plea was not knowingly and voluntarily made because he relied on erroneous advice by trial counsel. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). The State asserts that this contention is not properly before us because appellant's notice of appeal does not comply with Texas Rule of Appellate Procedure 25.2(b)(3). This rule is derived from the proviso clause of former Texas Rule of Appellate Procedure 40(b)(1). The Court of Criminal Appeals held that a defendant's right to challenge the voluntariness of a bargained guilty plea was not dependent on compliance with the rule 40(b)(1) proviso. Flowers v. State, 935 S.W.2d 131, 133-34 (Tex. Crim. App. 1996); see Moss v. State, 938 S.W.2d 186, 189 (Tex. App.--Austin 1997, pet. ref'd). The State does not mention Flowers in its brief or argue that the holding in that opinion does not apply to this appeal. We will address the merits of appellant's claim.
Before pleading guilty, appellant was admonished as required by statute. Tex. Code Crim. Proc. Ann. art. 26.13(a) (West 1989). Among other things, appellant was told that if the plea bargain was followed, he could not appeal without the court's permission. Id. art. 26.13(a)(3). Appellant told the court he understood this. Appellant's plea was accepted and the proceeding was recessed to allow the preparation of a presentence report. The parties appeared before the court for sentencing one month later. After sentence was imposed, appellant stated, "My lawyer has informed me that I have 30 days to appeal." The court responded, "Sir, you cannot appeal unless you get permission from this court, which I went over with you at the time that you entered your plea of guilty." Appellant then told the court he needed a different lawyer "because he told me that I had 30 days." The court again reminded appellant of what he had been told when he pleaded guilty. The court then denied permission to appeal.
Appellant argues that "it is uncontroverted that defense counsel misinformed Appellant that he had 30 days to appeal his case, when in fact Appellant could not appeal without first obtaining the permission of the trial court." Appellant urges that as a result of this misrepresentation, he "could not have had an accurate understanding of the consequences of his plea and therefore the plea was not knowingly and voluntarily entered."
Appellant's argument is based on the erroneous premise that he could not appeal without the court's permission. In fact, appellant did not require the court's permission to appeal rulings on written pretrial motions, jurisdictional issues, and the voluntariness of his plea. See Flowers, 935 S.W.2d at 133-34; Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994); Moss, 938 S.W.2d at 189. While t