Butler, Cedric Demichael v. Texas, the State Of

• Court: Court of Appeals of Texas
• Decided: October 29, 1996
• Docket: 05-92-01177-CR
• Status: Published

Opinion

•t£4&.^Zh$^^m^&M®&^**W%K>:>& '•i^mi^i^m^mm^^^^^^ • • •

£ 'ijf¥, O

Dismissed, Order issued October ^ , 1996 TiZLuyO &..)j-

Df- n r J ~{fijd t^V -' In The

(tiaurl of Appeals jTtftlr Btstrtct of ©*xas at lalias No. 05-92-01177-CR

CEDRIC DEMICHAEL BUTLER, Appellant

V.

THE STATE OF TEXAS, Appellee

OPINION AND ORDER

Before Chief Justice Thomas and Justices Maloney and Hankinson Cedric Demichael Butler appeals his conviction for sexual assault. Following revocation of his probation, the trial court assessed punishment at eight years in prison. In one point of error, appellant claims the evidence is insufficient to support his conviction. The State, however, challenges this Court's jurisdiction over the appeal because appellant originally pleaded guilty as part of aplea bargain agreement but filed only ageneral notice of appeal. As part of aplea bargain agreement, appellant pleaded guilty and was placed on deferred adjudication probation for two years and fined $500. Subsequently, the State filed s4v>«.,*»-*M&'s!*!&^*%^

amotion to adjudicate guilt. Appellant entered an open plea of true to the allegations in the motion, and the trial court revoked his probation and adjudicated him guilty. The trial court then placed appellant on ten years' probation. Nine months later, the State filed a motion to revoke probation. Appellant agreed to enter aplea of true in exchange for an eight-year sentence. After being sentenced to eight years in prison, appellant filed notice of appeal.

Rule 40(b)(1) of the Texas Rules of Appellate Procedure 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 anonjurisdictional 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. Apt, P. 40(b)(1). Ageneral 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. Q. 2684 (1994). Further, rule 40(b)(1) applies to cases in which an appellant is placed on deferred adjudication probation pursuant to aplea bargain agreement and the probation is subsequently revoked and appelant adjudicated guilty. Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996). In this case, appellant entered his original plea pursuant to anegotiated pleabargain agreement. Subsequently, as part ofanother negotiated plea agreement, appellant pleaded

-2- d-

true to theState's motion to revoke probation inexchange for an eight-year prison sentence.

Appellant's notice of appeal does not state that the trial court granted permission to appeal nor does it specify any matters raised by written motion or ruled on before trial. Consequently, appellant's notice of appeal is general, and he can raise only jurisdictional defects.

Appellant's sole point of error challenges the sufficiency of the evidence. Sufficiency of the evidence is a nonjurisdictional issue. Lyon, 872 S.W.2d at 736. Because appellant filed a general notice of appeal, this Court does not have jurisdiction over appellant's appeal. See Lyon, 872 S.W.2d at 736. Accordingly, we DISMISS the appeal for want of jurisdiction.

'EINDA THOMAS, CHIEF JUSTICE Do Not Publish Tex. R. App. P. 90

-3-