GERALD LYNN BOLES, Appellant v. THE STATE OF TEXAS, Appellee

Dismissed and Opinion Filed December 4, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-92-00967-CR
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GERALD LYNN BOLES, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 292nd District Court
Dallas County, Texas
Trial Court Cause No. F91-62727-HV
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O P I N I O N
Before Justices Morris, James, and Wolfe
Opinion By Justice Morris
        After pleading guilty pursuant to a plea bargain agreement, Gerald Lynn Boles appeals his conviction for aggravated assault. In one point of error, he contends the trial court erred in accepting his guilty plea. Because appellant did not obtain the permission of the trial judge to appeal this matter, and because this matter was not the subject of a written motion the trial judge overruled before trial, we conclude we have no jurisdiction over appellant's point of error and dismiss the appeal.
        On July 5, 1991, pursuant to a plea bargain agreement, appellant pleaded guilty to the offense of aggravated assault. In conformity with the plea bargain agreement, the trial court deferred adjudicating appellant's guilt, placed him on probation for five years, and assessed a $300 fine. The State later filed a motion to proceed to adjudication of guilt. After hearing evidence on November 12, 1991, the trial court found appellant guilty and sentenced him to confinement in the state penitentiary for ten years.
        In one point of error, appellant contends that the trial court erred in accepting his plea of guilty. Under article 1.051(e) of the Texas Code of Criminal Procedure, appellant argues that his appointed counsel was entitled to ten days to prepare for trial, unless the attorney waived the right with the defendant's consent in writing or on the record in open court. Tex. Code Crim. Proc. Ann. art. 1.051(e) (Vernon Supp. 1997). Appellant explains that the trial court appointed Stephen Tokoly to represent him on May 29, 1991. Thereafter the record shows that Russ Henrichs, not Tokoly, represented appellant at the examining trial conducted on July 2, 1991. Henrichs also represented appellant on July 5, 1991, when appellant pleaded guilty. Appellant maintains that as of July 5, 1991, Henrichs had been his appointed counsel for less than ten days. Although appellant and Henrichs signed documents waiving appellant's rights under article 1.051(e), appellant maintains that the record is not clear and that he may have been waiving his rights as they pertained to Tokoly instead of Henrichs. Appellant concludes that the record does not show a knowing, voluntary, and intelligent waiver and that the ten days were necessary to ensure the effective assistance of counsel. Appellant therefore contends that the trial court erred in accepting his guilty plea.
        We have no jurisdiction to consider appellant's point of error because the trial court sentenced appellant according to the terms of a plea bargain agreement and because appellant's notice of appeal does not (a) contain the trial judge's permission to appeal any matters or (b) state that the matters appealed were the subject of a written motion that the trial court overruled before trial. Tex. R. App. P. 40(b)(1). Rule 40(b)(1) applies to cases in which the trial court initially defers adjudicating an appellant's guilt and places the appellant on probation pursuant to a plea bargain agreement and thereafter revokes the appellant's probation, adjudicates the appellant guilty, and assesses a punishment within the range allowed by law. Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996). A notice of appeal that does not comply with rule 40(b)(1) confers jurisdiction on an appellate court to address only jurisdictional issues. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App.), cert. denied, 114 S. Ct. 2684 (1994).
        Because rule 40(b)(1) is predicated on a knowing and voluntary plea, a defendant may always challenge the voluntariness of his plea on appeal. Soto v. State, 837 S.W.2d 401, 404 (Tex. App.--Dallas 1992, no pet.). Appellant does not, however, contest the voluntariness of his guilty plea; rather, appellant contests the voluntariness of the waiver of his rights under article 1.051(e) and ties that complaint to whether counsel was able to represent him effectively. Because appellant did not connect the alleged error to the
 
 
voluntariness of his plea, we have no jurisdiction to consider it. See id.
        We dismiss the appeal for want of jurisdiction.
 
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
920967F.U05
 
 
File Date[12-04-96]
File Name[920967F]