Okigbo v. State

960 S.W.2d 923, 1998 WL 5892

• Court: Court of Appeals of Texas
• Decided: April 22, 1998
• Docket: 01-96-00930-CR
• Status: Published

Opinions

OPINION

ANDELL, Justice.

After the trial court found appellant, Charles O. OMgbo, guilty of theft, it assessed punishment of 5-years deferred adjudication and imposed a $1000 fine. The State filed a motion to adjudicate guilt, claiming that Ok-igbo had violated the terms and conditions of probation. The trial court found the allegations in the State’s motion to adjudicate to be true, revoked OMgbo’s probation, found Ok-igbo guilty of the charged offense, and assessed OMgbo’s punishment at a fine of $1000 and a 10-year confinement in prison. On appeal, OMgbo complains of the trial court’s denial of his motion to dismiss the State’s motion to adjudicate guilt and the legality of the sentence imposed. We affirm.

ADEQUACY OF THE NOTICE OF APPEAL

A defendant who receives deferred adjudication pursuant to a negotiated plea bargain and is later adjudicated guilty must comply with the extra notice requirements of rule 40(b)(1). Watson v. State, 924 S.W.2d 711, 714 (Tex.Crim.App.1996). Rule 40(b)(1) states in relevant part:

If the judgment was rendered upon Ms plea of guilty ... and the punishment assessed does not exceed the pumshment recommended by the prosecutor and agreed to by the defendant and Ms 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)(l)(emphasis added).

In our case, OMgbo agreed to the pumshment recommended and assessed. The transcript contains a document styled, “Plea of Guilty,” wMch OMgbo- personally signed. In this document, OMgbo agreed to plead guilty and agreed to the prosecutor’s recommendation on punishment. With tMs personal agreement to the pumshment recommended and assessed, OMgbo must have the trial court’s permission to appeal. Watson, 924 S.W.2d at 714.

An appeal to wMch the restrictions of rule 40(b)(1) apply is limited to matters wMch the trial judge allows, to pretrial motions, and to jurisdictional defects.¹ Watson, 924 S.W.2d at 714. A court of appeals errs if it reaches the merits of nonjurisdictional complaints raised by an appellant without permission of the trial judge or benefit of a written motion filed before trial. Id. at 715.

In this case, the trial judge did not allow OMgbo to appeal, OMgbo is not appealing a matter raised in a pretrial motion, and OMg-bo does not allege a jurisdictional defect. Instead, OMgbo is seeMng reversal based on the State’s failure to use due diligence in apprehending OMgbo and the legality of the sentence assessed against him. OMgbo has not complied with the extra notice requirements of rule 40(b)(1) and, therefore, we do not have jurisdiction over tMs appeal.

We dismiss the appeal for lack of jurisdiction.

1 . Jurisdictional defects are defects that go to the very power of the State to bring the defendant in court to answer the charge against him. Courtney v. State, 904 S.W.2d 907, 908 (Tex.App.—Houston [1st Dist.] 1995, pet. ref’d). Jurisdictional defects include claims of double jeopardy and facial unconstitutionality of the statute prescribing the offense alleged, but do not include constitutional violations in obtaining evidence, defects in the indictment, or sufficiency of the evidence. Id.