Howard, Patrick Deon v. State

• Court: Court of Appeals of Texas
• Decided: July 2, 1998
• Docket: 05-96-01989-CR
• Status: Published

Opinion

Affirmed and Opinion Filed July 2, 1998

In The

(Hour! of Appeals Jtfty Bxstrxci of Okxas at lallas No. 05-96-01989-CR

PATRICK DEON HOWARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court Number Four of Dallas County, Texas Trial Court Cause No. F96-17436-MK

OPINION PER CURIAM

Before Justices Kinkeade, Whittington, and James

Patrick Deon Howard was charged by indictment with the attempted capital murder

of Aaron E. Barnes, a Cedar Hill police officer. Appellant entered a plea of guilty to the

charged offense in exchange for a recommendation by the prosecutor that appellant be

sentenced to twenty-five years' imprisonment and a $500.00 fine and that his sentence run

concurrently with his sentence in another case. The trial judge accepted appellant's plea of

guilty and followed the plea agreement. The judgment was entered on November 14, 1996,

^•dUI L 0 6 m$ and contains a deadly weapon finding.

Appellant's attorney filed a brief in which he concludes that the appeal is wholly

frivolous and without merit. The brief meets the requirements ofAnders v. California, 386

U.S. 738 (1967). The brief presents a professional evaluation of the record showing why,

in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807

(Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant.

We advised appellant that he has a right to file a pro se response, but appellant did not file

a pro se response.

The State maintains that this Court lacks jurisdiction to consider this appeal under

rule 40(b)(1) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 40(b)(1) (former

rules).1 Rule 40(b)(1) requires that a defendant, appealing from a plea-bargained

conviction, file a notice of appeal stating that the trial court granted permission to appeal

or that the appellant raised the matters appealed by written motion, which was ruled on by

the trial court before trial. If appellant's notice of appeal does not meet the requirements

of rule 40(b)(1), then it is a general notice of appeal. A general notice of appeal does not

confer jurisdiction on a court of appeals to consider nonjurisdictional defects or errors

occurring before or after the entry of a negotiated plea. Lyon v. State, 872 S.W.2d 732, 736

1 Effective September 1,1997, when adefendant enters his plea of guilty or nolo contendere under article 1.15 ofthe Texas Code of Criminal Procedure and the punishment assessed by the trial courtdoes not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must specify that: (A) the appeal is for a jurisdictional defect; B) the substance of the appeal was raised by written motion and ruled on beforetrial; or C) the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). We apply therevised rules to allpending proceedings unless ourapplying the revised rules in a particular proceeding would not be feasible or would work injustice, in which case we may apply the former rules. Here, appellant filed hisnotice of appeal before the effective date of the new rules of appellate procedure. Because it would notto be feasible to require appellant to comply with the new rule, we apply former rule 40(b)(1).

-2- (Tex. Crim. App.), cert, denied, 114 S. Ct. 2684 (1994); Davis v. State, 870 S.W.2d 43, 46

(Tex. Crim. App. 1994).

In the this case, appellant filed an amended request for permission to appeal on

December 9, 1996, and the request contains on order signed by the trial court granting

appellant permission to appeal. Although appellant subsequently filed two timely notices

of appeal, neither notice of appeal states that appellant was given permission to appeal.

Nevertheless, because the order granting permission to appeal is contained in the transcript,

appellant's notices of appeal substantially comply with rule 40(b)(1), and this Court has

jurisdiction over this case. See Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992);

see also Davis, 870 S.W.2d at 47.

We have reviewed the record and counsel's brief. We agree that the appeal is

frivolous and without merit. We find nothing in the record that might arguably support the

appeal.

We affirm the trial court's judgment.

PER CURIAM

Do Not Publish Tex. R. App. P. 47 961989F.U05

-3- (Eaurt of Appeals JTiftly jBtstrtrt of Qkxas at Sallas JUDGMENT

PATRICK DEON HOWARD, Appellant Appeal from the Criminal District Court Number Four of Dallas County, Texas. No. 05-96-01989-CR (Tr.Ct.No. F96-17436-MK). Opinion delivered per curiam by Justices THE STATE OF TEXAS, Appellee Kinkeade, Whittington, and James.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 2, 1998.

IK WHITTINGTO JUSTICE

UL 0 6 J998