Kirk v. State

Court of Criminal Appeals of Texas

Kirk v. State

942 S.W.2d 624, 1997 WL 149240

CourtCourt of Criminal Appeals of Texas

DecidedMarch 17, 1997

Docket1553-96, 1554-96

StatusPublished

Cited by133 cases

This text of 942 S.W.2d 624 (Kirk v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirk v. State, 942 S.W.2d 624, 1997 WL 149240 (Tex. 1997).

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Opinion

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

The trial court accepted Appellant’s pleas of nolo contendere to two offenses of delivery of cocaine, found sufficient evidence to support the pleas, deferred a finding of guilt, and placed Appellant on ten years’ deferred adjudication probation. The Court of Appeals dismissed the appeal. Kirk v. State, Nos. 05-92-01806-CR & 05-92-01807-CR (Tex.App.—Dallas, delivered September 5, 1996).

On appeal, Appellant raised three points of error. The Court of Appeals held it was without jurisdiction to hear the appeals because Appellant did not appeal a ruling on a pretrial motion or have the trial court’s permission to appeal. The Court of Appeals cited our opinion in Dillehey v. State, 815 S.W.2d 623 (Tex.Cr.App.1991), for the proposition that Article 44.01(j), V.A.C.C.P. grants unadjudicated defendants a limited right to appeal only rulings on pretrial motions. Dillehey, however, did not hold that unadjudi-cated defendants were limited in what they could appeal, only that they could appeal under Article 44.02, V.A.C.C.P. Dillehey entered into a negotiated plea of guilty; therefore, under the proviso to Art. 44.02, he was limited to appealing with the trial court’s permission or to rulings on pretrial motions. 1 However, since Appellant entered his pleas without a plea bargain, the Rule 40(b)(1) restrictions on appeals of negotiated pleas do not apply. The Court of Appeals has jurisdiction to entertain Appellant’s appeal.

Accordingly, we grant Appellant’s petition, vacate the Court of Appeals’ order dismissing Appellant’s appeal, and remand the cause to that court to consider Appellant’s appeal.

1

. The proviso was repealed with the enactment of the Rules of Appellate Procedure. The procedures for a defendant appealing from a negotiated plea of guilty are now governed by Tex.R.App. Pro. 40(b)(1).

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OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

The trial court accepted Appellant’s pleas of nolo contendere to two offenses of delivery of cocaine, found sufficient evidence to support the pleas, deferred a finding of guilt, and placed Appellant on ten years’ deferred adjudication probation. The Court of Appeals dismissed the appeal. Kirk v. State, Nos. 05-92-01806-CR & 05-92-01807-CR (Tex.App.—Dallas, delivered September 5, 1996).

On appeal, Appellant raised three points of error. The Court of Appeals held it was without jurisdiction to hear the appeals because Appellant did not appeal a ruling on a pretrial motion or have the trial court’s permission to appeal. The Court of Appeals cited our opinion in Dillehey v. State, 815 S.W.2d 623 (Tex.Cr.App.1991), for the proposition that Article 44.01(j), V.A.C.C.P. grants unadjudicated defendants a limited right to appeal only rulings on pretrial motions. Dillehey, however, did not hold that unadjudi-cated defendants were limited in what they could appeal, only that they could appeal under Article 44.02, V.A.C.C.P. Dillehey entered into a negotiated plea of guilty; therefore, under the proviso to Art. 44.02, he was limited to appealing with the trial court’s permission or to rulings on pretrial motions. 1 However, since Appellant entered his pleas without a plea bargain, the Rule 40(b)(1) restrictions on appeals of negotiated pleas do not apply. The Court of Appeals has jurisdiction to entertain Appellant’s appeal.

Accordingly, we grant Appellant’s petition, vacate the Court of Appeals’ order dismissing Appellant’s appeal, and remand the cause to that court to consider Appellant’s appeal.

1

. The proviso was repealed with the enactment of the Rules of Appellate Procedure. The procedures for a defendant appealing from a negotiated plea of guilty are now governed by Tex.R.App. Pro. 40(b)(1).

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942 S.W.2d 624, 1997 WL 149240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirk-v-state-texcrimapp-1997.

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