Sha-Ron Donte Berry A/K/A Sha'ron Donte Berry v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2002
• Docket: 13-01-00484-CR
• Status: Published

Opinion

                                  NUMBER 13-01-00484-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

SHA-RON DONTE BERRY

A/K/A SHA=RON DONTE BERRY,                                  Appellant,

                                                   v.

THE STATE OF TEXAS,                                                       Appellee.

    On appeal from the 252nd District Court of Jefferson County, Texas.

                          MEMORANDUM OPINION

                  Before Justices Dorsey, Hinojosa, and Rodriguez

                                 Opinion by Justice Hinojosa

Pursuant to a plea bargain agreement, appellant, Sha-Ron Donte Berry a/k/a Sha=Ron Donte Berry, pleaded guilty to the offense of aggravated assault with a deadly weapon.  In accordance with the plea agreement, the trial court found appellant guilty, assessed his punishment at five years imprisonment, and made an affirmative finding that appellant had used a deadly weapon in committing the offense.  Appellant timely filed a pro se notice of appeal and employed counsel to represent him on appeal.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here.  See Tex. R. App. P. 47.1.

Appellant's counsel has filed a brief in which he has concluded that this appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), as it presents a professional evaluation of why there are no arguable grounds for advancing an appeal.  See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (citing High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978)).  Appellant=s counsel certified in the brief that he has informed appellant of his right to review the appellate record and to file a pro se brief.  Counsel also filed a motion requesting that this Court extend the time for appellant to file a pro se brief.  We granted the motion and gave appellant until April 4, 2002 to file his brief.  No such brief has been filed.

We must first determine whether this Court has jurisdiction to consider this appeal.  Because appellant appeals from a judgment rendered on a guilty plea made pursuant to a plea bargain agreement, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, we must consider the threshold issue of whether appellant=s notice of appeal is sufficient to confer jurisdiction on this Court.

The record shows that appellant filed only a general notice of appeal.  Because appellant=s notice of appeal does not specify that the appeal is for jurisdictional defects, from a ruling on a pre-trial motion, or that the trial court granted appellant permission to appeal, it does not comply with the specific notice requirements of Texas Rule of Appellate Procedure 25.2(b)(3).  See Tex. R. App. P. 25.2(b)(3).

The Texas Court of Criminal Appeals has held that when an appellant fails to comply with the extra-notice requirements of rule 25.2(b), the court of appeals lacks jurisdiction to consider the appeal, even for voluntariness issues.  See Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001) (holding that rule 25.2(b) does not permit the voluntariness of a plea to be raised on appeal, unless the trial court has granted permission for an appeal).  Accordingly, we conclude that this Court does not have jurisdiction to consider this appeal.

Upon receiving a Afrivolous appeal@ brief, appellate courts must conduct Aa full examination of all the proceeding[s] to decide whether the case is wholly frivolous.@  Penson v. Ohio, 488 U.S. 75, 80 (1988).  We have carefully reviewed the appellate record and counsel=s brief, find nothing in the record that might arguably support the appeal, and agree with appellant=s counsel that the appeal is wholly frivolous and without merit.  See Stafford, 813 S.W.2d at 511.

We dismiss this appeal for want of jurisdiction.

FEDERICO G. HINOJOSA

Justice

Do not publish.  Tex. R. App. P. 47.3.

Opinion delivered and filed this the

13^th day of June, 2002.