Arthur James Melonson, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2002
• Docket: 13-01-00585-CR
• Status: Published

Opinion

                                   NUMBER 13-01-585-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

ARTHUR JAMES MELONSON, JR.,                                         Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                       On appeal from the Criminal District Court

                                of Jefferson County, Texas.

                                   O P I N I O N

                    Before Justices Dorsey, Rodriguez, and Baird^[1]

                                   Opinion by Justice Baird    

Appellant was charged by indictment with the offense of aggravated sexual assault.  Appellant pled guilty to the charged offense, and punishment was assessed by the trial judge at fifty years confinement in the Texas Department of Criminal Justice--Institutional Division.  Appellant raises two points of error.  We dismiss for want of jurisdiction.

This case was being tried when appellant agreed to plead guilty to the charged offense, and the State agreed the trial judge would assess punishment but that the range of punishment would be capped at fifty years confinement.^[2]  The trial judge accepted the plea, dismissed the jury, and at the punishment hearing followed the agreement by not exceeding the agreed punishment cap.

The State argues appellant has not complied with the requirements of rule 25(b)(3) of the Rules of Appellate Procedure thereby depriving this court of jurisdiction

to address the points of error raised in appellant=s brief.  A defendant in a plea‑bargained felony case who files an appeal must meet the notice requirements of Texas Rule of Appellate Procedure 25.2(b)(3) to invoke appellate court jurisdiction over the case.  Specifically, the defendant's notice of appeal must state:  (1) the appeal was for a jurisdictional defect; (2) the substance of the appeal was raised by written motion and ruled on before trial; or (3) the trial court granted permission to appeal. Tex. R. App. P. 25(b)(3); Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001).

The record contains a general notice of appeal which does not state that the trial judge granted permission to appeal.  Moreover, the points of error do not raise a jurisdictional defect.  Finally, the points of error raised by appellant do not concern matters raised by written motion and ruled on before trial.  Accordingly, we are without jurisdiction to address the merits of these points of error.  Hutchins v. State, 887 S.W.2d 207, 211 (Tex. App.BAustin 1994, pet. ref'd).^[3]

This appeal is dismissed for want of jurisdiction.

CHARLES F. BAIRD

Justice

Do not publish. 

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 13th day of June, 2002.

---

^[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2]  The record reveals the following:

TRIAL JUDGE: [Appellant], you and your attorney have reached a plea bargain agreement with the State of Texas.  Do you understand this Court is not bound to follow that agreement?

APPELLANT: Yes, sir.

...

TRIAL JUDGE: Do you also understand that if the Court does, in fact, follow the plea bargain agreement that you cannot appeal your plea of guilty to the higher court unless you first obtain consent from this Court?

^[3] We pause briefly to note that neither of appellant=s points of error are meritorious.  Texas courts have traditionally held that as long as the punishment is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive.  Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).  Because fifty years is within the prescribed range for the first degree felony offense of aggravated sexual assault, his argument his sentence is cruel and unusual is without merit.  As to the second point of error, we have carefully reviewed the record and find that the failure of the trial judge to sign the first page of the AWritten Plea Admonishments@ document (however, he did sign the second page and final page) does not rise to the level of a violation of the Due Process Clause of the United States Constitution.  Brady v. United States, 397 U.S. 742, 753 (1970); Lord v. State, 63 S.W.3d 87, 90 (Tex. App.BCorpus Christi 2001, no pet.).