Manuel Alvarado v. State

Opinion

NO. 07-01-0490-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 18, 2002

______________________________

MANUEL ALVORADO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT OF WHEELER COUNTY;

NO. 7408; HONORABLE JERRY DAN HEFLEY, JUDGE

_______________________________

Before BOYD, C.J., and QUINN and JOHNSON, JJ.

Appellant Manuel Alvorado appeals from his conviction for misdemeanor driving

while intoxicated. We dismiss for want of jurisdiction.

Appellant seeks reversal of a judgment of conviction dated November 13, 2001, in

Cause No. 7408 in the County Court of Wheeler County for misdemeanor driving while

intoxicated. His conviction and sentence were pursuant to a plea bargain which was

honored by the trial judge. As part of the trial court proceedings appellant and his court- appointed attorney executed written waivers of the making of a record of the plea

proceeding and appellant’s right to appeal.

Appellant filed a motion for new trial urging that his plea was involuntary because

of ineffective assistance of his appointed counsel and because he did not understand the

terms of the plea bargain due to his inability to read, write or understand the English

language. The trial court held a hearing on the motion. Testimony, evidence and

affidavits were presented. The motion was overruled by operation of law. Appellant filed

a general notice of appeal. He presents six issues which he maintains warrant reversal

of his conviction. Issue 1 asserts violations of appellant’s rights during his arrest, pretrial

proceedings and at the plea hearing. Issues 2, 5 and 6 urge that his plea was involuntary

due to coercion by and ineffectiveness of his appointed counsel and the court interpreter.

Issues 3 and 4 claim improper procedures and evidentiary rulings by the trial court during

and after the hearing on appellant’s motion for new trial.1 Neither appellant’s notice of

appeal nor his brief allege that the trial court gave permission for the appeal or that his

appeal involves matters raised by written motion filed prior to trial. The record does not

reflect either permission from the trial court for appeal or written pretrial motions.

The State urges that appellant’s notice of appeal does not comply with the form

required by TEX . R. APP . P. 25.2(b)(3),2 and thus fails to invoke our appellate jurisdiction

even though appellant’s conviction was for a misdemeanor instead of a felony. The State

1 Appellant does not assert that the trial court erred in failing to grant a new trial. 2 A rule of appellate procedure will be referred to as “TRAP_” hereafter.

2 cites authorities such as Lenox v. State, 56 S.W.3d 660 (Tex.App.--Texarkana 2001, pet.

ref’d), to support its position.

We disagree that the form of appellant’s notice of appeal must comply with TRAP

25.2(b)(3) in order to invoke our appellate jurisdiction. As noted hereafter, however, we

agree that we do not have jurisdiction over the appeal.

A threshold question in any case is whether the court has jurisdiction over the

pending controversy. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996).

Courts will address the question of jurisdiction sua sponte; for, unless a court has

jurisdiction over a matter, its actions in the matter are without validity. Id. at 657 n.2.

The right to appeal is conferred by the legislature, and a party may appeal only that

which the legislature has authorized. See Marin v. State, 851 S.W.2d 275, 278

(Tex.Crim.App. 1993); Galitz v. State, 617 S.W.2d 949, 951 (Tex.Crim.App. 1981).

Appellate jurisdiction is invoked by giving timely and proper notice of appeal. See State

v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App. 2000). Notice of appeal is sufficient if it is

in writing and shows the party’s desire to appeal from the judgment or appealable order.

See TRAP 25.2(a), (b). But, if the appeal is from a judgment which was rendered on the

defendant’s plea of guilty or nolo contendere under TEX . CRIM . PROC . CODE ANN . art. 1.15

(Vernon Supp. 2002),3 and in which the punishment assessed did not exceed the

punishment recommended by the prosecutor and agreed to by the defendant, the form of

3 References to provisions of the Code of Criminal Procedure hereafter will be by reference to “CCP_.”

3 the notice of appeal must comply with provisions of TRAP 25.2(b)(3). See White v. State,

61 S.W.3d 424, 428 (Tex.Crim.App. 2001). TRAP 25.2(b)(3) applies to appeals of plea-

bargained felony convictions (i.e., those made under CCP art. 1.15), but not to appeals of

plea-bargained misdemeanor convictions. See Lenox, 56 S.W.3d at 663.

Appeals from misdemeanor convictions based on plea-bargained guilty or nolo

contendere pleas honored by the trial court are governed by the “proviso” part of CCP art.

44.02 which requires that before such a misdemeanor conviction may be appealed, the

trial court must have given its permission or the matters must have been raised by written

motion filed before trial. See Lenox, 56 S.W.3d at 664. If the record does not demonstrate

permission to appeal by the trial court or that the appeal is based on matters raised by

written motion filed before trial, the appellate court does not have jurisdiction to consider

the appeal. Id. Such lack of appellate jurisdiction extends to the issue of voluntariness

of the plea. Id.

Appellant does not claim, and the record does not demonstrate, that the trial court

gave permission to appeal or that any matters raised in his appeal were the subject of

written motions filed before trial. Accordingly, we do not have jurisdiction. The appeal is

dismissed for want of jurisdiction.

Phil Johnson Justice

4 Publish.