dissenting.
I respectfully dissent from the majority’s finding that we are precluded from addressing Martinez’s first three points of error because his notice of appeal does not meet the requirements of Tex.R.App.P. 40(b)(1) for appeals from plea-bargained judgments.
Rule 40(b)(1) states in pertinent part:
(1) Appeal is perfected in a criminal case by giving timely notice of appeal.... Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; butjf the judgment was rendered upon his plea of guilty or nolo contendere ... 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 nonjurisdictiona! 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.
Id. (emphasis supplied). Here, Martinez entered a plea of nolo contendere based on the prosecutor’s recommendation and Martinez’s agreement to two years of deferred adjudication probation. Three years later, Martinez pleaded true to the State’s allegations that he violated his probationary conditions. His deferred adjudication probation was then revoked, and he was sentenced to seven years’ confinement, to be probated for seven years, and ordered to participate in the probation department’s boot camp program.
In Ex parte Hernandez, 705 S.W.2d 700 (Tex.Crim.App.1986) the court of criminal appeals stated that former article 44.02 of the Texas Code of Criminal Procedure1 barred appeal by a defendant who had been “convicted,” when the court had assessed “punishment” that did not exceed the plea bargain. Id. at 703. However, the court went on to state that an order conforming with plea bargain for deferred adjudication does not “assess punishment.” Specifically, the court said:
Since an order conforming with plea bargain for deferred adjudication is not an appealable order and does not assess punishment within [the] meaning of Article 87.07, § 3(a) and (d), and within contemplation of Article 44.02, it follows that a defendant is not precluded from prosecuting an appeal after adjudication of guilt, judgment and sentencing merely because he initially bargained for deferred adjudication and was admonished according to Article 26.13(a)(3).
Id.
In 1987, the legislature enacted article 44.01(j) of the Texas Code of Criminal Proce*657dure for the purpose of permitting immediate appeals from orders of deferred adjudication. Tex.Code Crim.ProC.Ann. art. 44.01(j) (Vernon Supp.1995); Dillehey v. State, 815 S.W.2d 623, 624-26 (Tex.Crim.App.1991); State v. Davenport, 866 S.W.2d 767, 770 (Tex.App.-San Antonio 1993, no pet.). In enacting article 44.01(3), however, the legislature did not intend to abrogate the long-standing rule enunciated in Hernandez that deferred adjudication is not “punishment,” nor the interpretation of the “commonplace legal phrase ‘assessment of punishment’, as used in Hernandez.” Dillehey, 815 S.W.2d at 624; see also Cabezas v. State, 848 S.W.2d 693, 694 (Tex.Crim.App.1993) (“there is no adjudication of guilt and no assessment of punishment” in a deferred adjudication proceeding); Price v. State, 866 S.W.2d 606, 611 (Tex.Crim.App.1993) (“[a]n order deferring adjudication of guilt and placing defendant on ‘probation’ ... does not constitute a ‘conviction,’ and such ‘probation’ is not the functional equivalent of probation”); Weed v. State, 891 S.W.2d 22, 24-25 (Tex.App.—Fort Worth 1995, no pet.) (“[bjecause the adjudication of guilt and punishment are ‘deferred,’ there is no true punishment set”; “deferred adjudication involves neither an adjudication of guilt nor assessment of punishment”).
The trial court in this case did not assess “punishment” until the adjudication hearing. The assessed punishment was not negotiated or agreed to by Martinez or his attorney. I would, therefore, hold that Rule 40(b)(1) does not require Martinez to obtain permission of the trial court to appeal his original plea proceeding because the “punishment” he received was not plea-bargained.
In reaching the opposite conclusion, the majority relies heavily on Montalbo v. State, 885 S.W.2d 160 (Tex.Crim.App.1994). Mon-talbo involved a direct appeal from a plea-bargained order deferring adjudication. There had been no adjudication of the defendant’s guilt and the trial court had not assessed “punishment” in excess of the deferred adjudication probation agreed to by the defendant. The sole issue in Montalbo was whether a defendant who pleads guilty or nolo contendere pursuant to a plea bargain may appeal the sufficiency of the evidence to support the plea under Rule 40(b)(1), even in the absence of permission from the trial court. Id. at 160-61. Citing Rhem v. State, 873 S.W.2d 383 (Tex.Crim.App.1994), Lyon v. State, 872 S.W.2d 732 (Tex.Crim.App.), cert. denied, — U.S. -, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994) and Davis v. State, 870 S.W.2d 43 (Tex.Crim.App.1994), the court of criminal appeals merely reaffirmed that a defendant is required to obtain permission of the trial court in order to challenge the sufficiency of evidence to support a plea-bargained plea or conviction on appeal, and that such permission must be stated in the notice of appeal. Montalbo, 885 S.W.2d at 161. The court did not address the requirements for an appeal from a judgment based on a plea of guilty or nolo con-tendere that was originally entered in exchange for deferred adjudication probation, but where the defendant’s guilt was subsequently adjudicated and the “punishment assessed” was not agreed to by the defendant.
Since the actual “punishment assessed” in this case was not the result of a plea bargain and exceeded the deferred adjudication probation to which Martinez originally agreed, the limitations of Rule 40(b)(1) pertaining to the appeal of plea-bargained convictions does not preclude us from reviewing Martinez’s first three points of error. I, therefore, believe the majority is mistaken in failing to reach those points.
. Although Hernandez was decided prior to the adoption of Rule 40(b)(1), it construed provisions of article 44.02 which were identical in substance to the current Rule 40(b)(1).