Henderson, Tracey Denise v. Texas, the State Of

• Court: Court of Appeals of Texas
• Decided: October 29, 1996
• Docket: 05-92-02207-CR
• Status: Published

Opinion

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In The

(Sltfitrt fff Appeals W\i\\[ Itstrtrt of ©exas ai Dallas No. 05-92-02207-CR

TRACEY DENISE HENDERSON, Appellant

THE STATE OF TEXAS, Appellee

OPINION AND ORDER

Before Chief Justice Thomas and Justices Maloney and Hankinson

Tracey Denise Henderson appeals her conviction for possession of less than twenty-

eight grams of cocaine. Punishment was assessed at twenty years in prison and a $200 fine.

In one point of error, appellant claims the evidence is insufficient to support her

conviction. The State, however, challenges this Court's jurisdiction over the appeal

because appellant originally pleaded guilty as part of a plea bargain agreement but filed only

a general notice of appeal.

As part of a plea bargain agreement, appellant pleaded guilty and was placed on

deferred adjudication probation for four years and fined $750. Subsequently, the State filed v Hi 4h {n

a motion to adjudicate guilt. Appellant entered an open plea of true to the allegations in

the motion, and the trial court revoked her probation, adjudicated her guilty, and imposed

punishment. Appellant appealed.

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 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). Further, rule 40(b)(1) applies to cases in which

an appellant is placed on deferred adjudication probation pursuant to a plea bargain

agreement and the probation is subsequently revoked and appellant adjudicated guilty.

Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996).

In this case, appellant entered her original plea pursuant to a negotiated plea bargain

agreement. The punishment assessed by the trial judge did not exceed that agreed to by

appellant and her attorney and recommended by the State. 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

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of appeal is general, and she 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.

LINDA THOMAS CHIEF JUSTICE Do Not Publish Tex. R. App. P. 90

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