Mark Phillip Quam v. State

• Court: Court of Appeals of Texas
• Decided: February 19, 1992
• Docket: 03-91-00026-CR
• Status: Published

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-91-026-CR

MARK PHILLIP QUAM,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

NO. 90-222-K26, HONORABLE WILLIAM S. LOTT, JUDGE PRESIDING

Appellant entered a negotiated plea of guilty to the offense of aggravated possession with intent to deliver cocaine. See Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.112(d)(2) (Pamph. 1992). The court assessed punishment in conformity with the plea bargain agreement at fifteen-years' confinement and a fine of five thousand dollars.

In a single point of error, appellant contends that the court erred in overruling his motion to suppress evidence. While appellant's motion was in writing and ruled on before trial, appellant's notice of appeal does not so state. Texas R. App. P. Ann. 40(b)(1) (Pamph. 1992) provides in pertinent part:

Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his 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.

In order for appellant to prosecute his point of error complaining of the overruling of his pretrial motion to suppress, it was necessary for appellant to comply with the notice of appeal requirements set forth in Rule 40(b)(1). Otherwise, the point of error is not preserved for review. Berger v. State, 780 S.W.2d 321, 323 (Tex. App. 1989, no pet.).

In Jones v. State, 796 S.W.2d 183 (Tex. Crim. App. 1990), a similar case, the court stated that Rule 40(b)(1) is a restrictive rule. If a defendant wishes to appeal a matter that is nonjurisdictional and occurred prior to the entry of his plea, then he must conform to the requirements of the statute "and include within his notice what the grounds of appeal are and that he received permission of the trial court to appeal." Jones, 796 S.W.2d at 186. ⁽¹⁾ We find that appellant's point of error was not preserved for review.

The judgment is affirmed.

Tom G. Davis, Justice

[Before Chief Justice Carroll, Justices B. A. Smith and Davis^*]

Affirmed

Filed: February 19, 1992

[Do Not Publish]

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (1988).

1.   Unlike Riley v. State, Nos. 000.1-91 and 00002-91 (Tex. Crim. App., January 29, 1992), the record in the instant cause does not contain an order of the court reflecting that appellant was assessed punishment in accordance with a plea bargain, that the trial court allowed appeal, and that a motion to suppress was raised before trial.