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Dismissed, Order issued October 30, 1996
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In The
Court of Appeals I r
iTtftl^ Itstrtrt of Wexns at Ballas
No. 05-92-02063-CR
LEWIS BIVINS, Appellant
V.
THE STATE OF TEXAS, Appellee
OPINION AND ORDER
Before Chief Justice Thomas and Justices Maloney and Hankinson
Lewis Bivins appeals his conviction for unauthorized use of a motor vehicle. As part
of a plea bargain agreement, appellant pleaded nolo contendere and was placed on ten
years probation on December 20, 1990.1 Subsequently, the State moved to revoke
appellant's probation. Again, as part of a plea bargain agreement, appellant pleaded true
to the allegations in the State's motion, and the trial court sentenced him to ten years in
prison on August 14, 1992. Appellant timely perfect his appeal.
Specifically, the agreement provided that appellant would be sentenced to ten years in prison but would be allowed to
participate in the Special Alternative Incarceration Program. About three months after sentence was imposed, the trial court
ordered appellant placed on probation for ten years.
Mivo
The State filed a motion to dismiss the appeal on the ground that this Court does not
have jurisdiction because appellant filed only a general notice of appeal. In his brief, filed
by retained counsel Ross Teter, appellant concedes this Court has no jurisdiction pursuant
to rule 40(b)(1) of the Texas Rules of Appellate Procedure and asserts no points of error.
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 shall specify 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 confer jurisdiction 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).
In this case, appellant entered his plea of true to the State's motion to revoke
probation pursuant to a negotiated plea bargain. The punishment assessed by the trial court
did not exceed that agreed to by appellant and his attorney and recommended by the State.
Further, appellant filed only a general notice of appeal.
According to appellant's brief, appellant was admonished in 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
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general notice of appeal, this Court does not have jurisdiction over this appeal.
Accordingly, we GRANT the State's March 7,1995 motion to dismiss appealfor want
of jurisdiction.
We DISMISS the appeal for want of jurisdiction.
LINDA THOMAS
CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 90
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•&^«*B»m;»^>'i«^
NO. O5-92-02063-CR
LEWIS BIVINS S IN THE COURT OF APPEALS
VS. S FOR THE FIFTH DISTRICT
THE STATE OF TEXAS S OF TEXAS AT DALLAS
FILED IN
COURT of ftp""";
ON APPEAL FROM THE MJ\R - 7 1995
265TH JUDICIAL DISTRICT COURT
OF DALLAS COUNTY TEXAS MELANiE Ktliutf
IN CAUSE NO. F90-53996-PR CLERK, >*--
BTATE'S MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION
FILED IN RESPONSE TO APPELLANT'S BRIEF
TO THE HONORABLE JUDGES OF SAID COURT!
COMES NOW the State of Texas, by and through the Criminal
District Attorney of Dallas County, Texas, and files this motion to
dismiss the appeal for want of jurisdiction. In support of this
motion, the State would show the Court the following:
I.
Appellant was convicted of unauthorized use of a motor
vehicle and sentenced to 10 years confinement in the Texas
Department of Criminal Justice, Institutional Division, pursuant to
the terms of a plea bargain agreement. The judgment was dated
December 20, 1990. (R.1-11-12). On April 8, 1991, the sentence
was suspended and Appellant was placed on 10 years probation.
(R.I-13). On August 14, 1992, the court revoked Appellant's
probation and sentenced him to 10 years' confinement in the Texas
Department of Criminal Justice, Institutional Division, pursuant to
a plea bargain agreement. (R.I-19, 21-22).
II.
The State is asking this Court to dismiss the appeal for
lack of jurisdiction. This case involves a plea of nolo contendere
by Defendant in a trial before the court wherein the punishment
assessed by the court did not exceed the punishment recommended by
the prosecution and agreed to by Defendant and his attorney. (R.I-
9, ll).1 TEX. R. APP. P. 40(b)(1) provides that in such a case, in
order to pursue an appeal, Defendant must state in his notice of
appeal that he had permission of the court to appeal or that he is
appealing those matters raised by written motion filed prior to
trial. The notice of appeal filed by Defendant in this case does
not contain any of these required statements. (R.1-26-27).
III.
The State calls this Court's attention to the recent
decisions by the Court of Criminal Appeals in Lvon v. State. 872
S.W.2d 732,736 (Tex. Crim. App. 19941 and Davis v. State. 870
S.W.2d 43,46 (Tex. Crim. App. 1994), wherein the Court held that a
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 736. This holding
'No citation has been made to the Statement of Facts due to its
unavailability.
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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 of appeal in such a case
is insufficient to confer jurisdiction on an appellate court. Id.
Moreover, an appellate court may not permit a defendant to amend a
notice of appeal out of time. Id. at 737.
IV.
The State respectfully urges this Court to apply the
rulings in Lyon and Davis to its own decision in the instant case.
Defendant's notice of appeal is deficient and cannot now be timely
amended to meet the requirements of Rule 40(b)(1). In the absence
of an adequate notice of appeal, this Court is without jurisdiction
to entertain the appeal.
V.
Appellant has filed a brief wherein he admits that his
notice of appeal does not comply with Rule 40(b)(1) and that Lyon
and Davis apply. Appellant is therefore in agreement with the
State's position and, consequently, his appeal should be dismissed
for want of jurisdiction.
VI.
WHEREFORE, PREMISES CONSIDERED, the State respectfully
requests this Court to dismiss Defendant's appeal for want of
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jurisdiction because Defendant has not properly perfected his
appeal in accordance with TEX. R. APP. P. 40(b)(1).
Respectfully submitted,
By:
LISA L. BRAXTON
ASSISTANT DISTRICT^ATTpRNEY
STATE BAR NO. 00787131
FRANK CROWLEY COURTS BUILDING
LOCK BOX 19
DALLAS, TEXAS 75207-4399
(214) 653-3624
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing motion
to dismiss has been served on Ross Teter, Attorney for Appellant,
311 N. Stemmons Freeway, Suite 100, Dallas, Texas 75207-4397, by
depositing same in the United States Mail, Postage Prepaid, on this
the _£J2r daY of March, 1995.
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