Steve Kermit Steffey v. State

Steve Kermit Steffey v. State

IN THE

TENTH COURT OF APPEALS

No. 10-98-265-CR

     STEVE KERMIT STEFFEY,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 17684CR

                                                                                                                                                                                                                          

O P I N I O N

                                                                                                                     We are again presented with the question: Can a criminal defendant who pleaded guilty bring an appeal without complying with the rule of appellate procedure which gives this court jurisdiction? We again hold that by failing to comply with the rule, the defendant has not invoked our jurisdiction to consider this appeal and it must be dismissed.

      Appellant Steve Kermit Steffey was indicted for the offense of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(B) ( Vernon Supp. 1998). On June 28, 1991, appellant entered a plea of nolo contendere and accepted a plea bargain offer for ten years of deferred adjudication probation. Pursuant to the State's plea recommendation, the court deferred an adjudication of Steffey's guilt and placed him on probation (now community supervision) for ten years. On January 14, 1998, the State filed a petition to revoke probation and adjudicate guilt. Steffey pleaded “not true” to alleged violations of community supervision. After hearing evidence of the alleged violations, the trial court determined there had been a violation and adjudicated Steffey guilty of aggravated sexual assault of a child and sentenced him to twenty years imprisonment and a $1000 fine.

     A defendant who has pleaded guilty or nolo contendere in exchange for deferred adjudication must comply with Rule 25.2(b)(3) of the appellate rules when he seeks to appeal a subsequent sentencing. See Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App 1996) (applying former appellate rule 40(b)(1) now Rule 25.2(b)(3)). Rule 25.2(b)(3) provides in pertinent part that if a defendant seeks to appeal:

from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

Tex. R. App. P. 25.2(b)(3).

      Steffey had pleaded nolo contendere to the original charges. After his adjudication of guilt, Steffey filed a general notice of appeal which does not recite that the appeal is for a jurisdictional defect; that the substance of the appeal was raised and ruled on by pretrial motion; or that the trial court granted him permission to appeal. Thus, Steffey’s notice of appeal does not comply with the requirements of Rule 25.2(b)(3).

      Because Steffey's notice of appeal does not comply with these requirements, we have no jurisdiction over this appeal. Watson, at 714. See Tressler v. State, 10-98-355-CR, (Tex. App.—Waco delivered and filed February 24, 1999). This holding has been uniformly accepted by the courts that have addressed this issue. See Okigbo v. State, 960 S.W.2d 923, 925 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd ); Walter v. State, 970 S.W.2d 27, 29 (Tex. App.—Dallas 1997, no pet.); Carothers v. State, 928 S.W.2d 315, 317 (Tex. App.—Beaumont 1996, pet. ref'd)(both applying former rule 40(b)(1)). Accordingly, we dismiss this appeal for want of jurisdiction.

 

TOM GRAY

                                                                                     Justice

Before   Chief Justice Davis,

            Justice Vance, and

            Justice Gray

Dismissed

Opinion delivered and filed on April 28, 1999

Do not publish

 

 

notice of the removal of this case to federal court.  You may then wonder:  under what authority does the Court render any order other than a determination that we have no jurisdiction to take some action sought by the parties?  I did too.  I was referred only to cases that hold we have jurisdiction to determine our jurisdiction but no jurisdiction to take any other action if we determine we have no jurisdiction and to other cases that support the notion we could possibly abate a collateral matter until an automatic bankruptcy stay in a related matter is lifted.  In re McDaniel, No. 10-04-00166-CV, 2004 Tex. App. LEXIS 10114, * 8-9 (Tex. App.—Waco Nov. 10, 2004, order) (order abating an original proceeding when the related matter was stayed by bankruptcy). 

I have found no authority that gives us jurisdiction to render an abatement order when it is undisputed that we no longer have jurisdiction of the case.

To the extent the Court expresses an opinion on conditional circumstances and events that have not yet occurred, I have always thought that was an advisory opinion; something we do not have authority to do.  See Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991) (the courts are without authority to render advisory opinions).

I have been unable to determine what this order accomplishes or why it is necessary.

I dissent.

 

                                                                   TOM GRAY

                                                                   Chief Justice

 

 

Dissenting opinion delivered and filed January 19, 2005

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