Walker v. State

970 S.W.2d 27, 1997 Tex. App. LEXIS 5597

• Court: Court of Appeals of Texas
• Decided: October 28, 1997
• Docket: No. 05-91-01660-CR
• Status: Published

Opinions

OPINION

LAGARDE, Justice.

Danielle Marie Walker appeals, her conviction for unauthorized use of a motor vehicle. In a single point of error, appellant contends that her conviction must be reversed and this cause remanded for a new trial because the statement of facts from her July 26, 1985 deferred adjudication hearing was lost or destroyed through no fault of her own. For reasons that follow, we dismiss this appeal.

Appellant was indicted for the June 12, 1985 offense of unauthorized use of a motor vehicle. Appellant waived her right to a jury, pleaded guilty pursuant to a plea bargain agreement with the State, and signed a written judicial confession that tracked the language of the indictment. The trial court followed the plea bargain, deferred adjudication of guilt, and placed appellant on deferred adjudication probation for four years, subject to various conditions.

On July 31, 1986 and again on July 24, 1989, the State filed a motion to proceed with adjudication of guilt on the ground that appellant had violated the terms of her deferred adjudication probation. On May 23, 1991, appellant pleaded true to the State’s allegations. On the same day, the trial court found the State’s allegations true, accepted appellant’s guilty plea entered on July 26, 1985, found appellant guilty, and sentenced appellant to ten years’ confinement and a five hundred dollar fine.

On June 20, 1991, appellant filed a motion for new trial. On August 12, 1991, appellant timely filed a notice of appeal in which she claimed she was indigent and requested that the trial court order the court reporter to prepare a statement of facts reflecting all evidence presented in this cause.¹ On June 26, 1996, the official court reporter who reported the July 26, 1985 proceeding filed an affidavit with this Court stating that his notes from that proceeding had been destroyed. Appellant filed no motion to supplement the record supported by this affidavit. This Court ordered the trial court to conduct a hearing to determine whether the July 26, 1985 statement of facts was available. On October 1, 1996, the trial court held the hearing and found that the statement of facts had been destroyed through no fault of the defendant, and that the parties could not agree on a statement of facts. The trial court took judicial notice of the court reporter’s June 26, 1996 affidavit. This Court adopted the trial court’s October 1, 1996 findings. Appellant did not file a motion to supplement the record supported by the court reporter’s affidavit. This Court has before it the live testimony of the court reporter in the statement of facts of the trial court’s October 1, 1996 hearing, not because of due diligence on appellant’s part, but because of this Court’s own initiative.

In a single point of error, appellant argues she is entitled to a reversal of her conviction and a new trial because the statement of facts from her original plea hearing in 1985 was lost or destroyed through no fault of her own.

JURISDICTION

A defendant who is convicted on a plea of guilty and punished in accordance with a recommendation of the prosecuting attorney may complain on appeal only of those matters allowed by the trial judge or raised by written motion prior to trial. See Tex.R.App. P. 40(b)(1) (former rules); Watson v. State, 924 S.W.2d 711, 713 (Tex.Crim.App.1996). The defendant’s notice of appeal must affirmatively state that the trial court granted permission to appeal or specify that the matters appealed were raised by written motion and ruled on before trial. Tex.R.App. P. 40(b)(1) (former rules); Curlin v. State, 881 S.W.2d 513, 516 (Tex.App.—Dallas 1994, no pet.). A general notice of appeal does not confer jurisdiction on a court of appeals to consider nonjurisdietional defects or errors that occur before or after the entry of a negotiated plea. Curlin, 881 S.W.2d at 516.²

Rule 40(b)(1) applies to appeals from deferred adjudication orders. See Watson, 924 S.W.2d at 715. A defendant who pleads guilty in exchange for deferred adjudication probation is bound by the restrictions of rule 40(b)(1) when he is later adjudicated and sentenced. Watson, 924 S.W.2d at 714.

In our case, appellant personally agreed to the punishment recommended and assessed. The transcript contains a document styled, “Plea Bargain Agreement,” signed by appellant personally. In this document, appellant agreed to plead guilty, to testify, and to be placed on four years’ deferred adjudication probation. With this personal agreement to the punishment recommended and assessed, appellant must have the trial court’s permission to appeal. Cf. Padgett v. State, 764 S.W.2d 239, 241 (Tex.Crim.App.1989); see also Watson, 924 S.W.2d at 714 (order of deferred adjudication is punishment; thus the restrictions of former rule 40(b)(1) apply). However, the notice of appeal does not reflect that the trial judge allowed appellant to appeal, or that appellant is appealing a matter raised in a pretrial motion. Appellant does not allege a jurisdictional defect. Instead, appellant is seeking reversal based solely on the destruction of the statement of facts from her July 26, 1985 hearing. Appellant has not complied with the extra notice requirements of former rule 40(b)(1). See Tex.R.App. P. 40(b)(1) (former rules). Because this Court does not have jurisdiction over this appeal, this appeal is dismissed.

1 . A notice of appeal must be filed within thirty days after the day the sentence is imposed; if a motion for new trial is timely filed, notice of appeal must be filed within ninety days after sentence is imposed. Tex.R.App. P. 41(b)(1) (former rales). In this case, appellant filed a motion for new trial; therefore, her notice of appeal was timely filed within ninety days after sentencing.

2 . The dissent states that the holding in this case "flies in the face of a previous opinion of this Court authored by the very justice authoring the majority opinion in this case,” citing Mims v. State, 828 S.W.2d 775 (Tex.App.—Dallas 1992, pet. ref'd). Mims is distinguishable from this case. In Mims, we denied the State’s presubmission motion to dismiss and granted the appellant’s presubmission motion for an extension of time to file the statement of facts because the appellant’s failure to comply with rule 40(b)(1) did not deprive the Court of jurisdiction over the appeal. See id. at 777-78. Since this Court issued Mims, the court of criminal appeals has determined that an appellant’s failure to comply with the extra notice requirements of rule 40(b)(1) does deprive appellate courts of jurisdiction over appeals of plea-bargained cases. See Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.), cert. denied, 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994); Davis v. State, 870 S.W.2d 43, 46-47 (Tex.Crim.App.1994); see also Watson, 924 S.W.2d at 714-15 (extra notice of appeal requirements of rule 40(b)(1) apply to appeals following plea bargain for deferred adjudication). Accordingly, the legal rationale of our holding in Mims has been undermined by the more recent decisions of the court of criminal appeals. We conclude, therefore, that Mims is not controlling.