CURTIS WAYNE NELSON, Appellant v. THE STATE OF TEXAS, Appellee

Dismissed and Opinion Filed November 25, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-92-01234-CR
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CURTIS WAYNE NELSON, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F92-59933-WK
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O P I N I O N
Before Justices Morris, James, and Wolfe
Opinion By Justice Morris
        This appeal follows a conviction based on a guilty plea. In three points of error, appellant complains that the trial court's incorrect admonishment about the punishment range denied him due process under the Federal and Texas Constitutions and violated article 26.13 of the Texas Code of Criminal Procedure. The State contends we are without jurisdiction to consider this appeal. We agree with the State and dismiss the appeal for want of jurisdiction under Texas Rule of Appellate Procedure 40(b)(1).
        At the time appellant was indicted for possession of less than 28 grams of cocaine, the offense was a second degree felony. Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 1992) (current version at Tex. Health & Safety Code Ann. § 481.115 (Vernon Supp. 1997)). Appellant entered into a plea bargain agreement with the State whereby he agreed to plead guilty, and the State agreed to recommend that he be placed on four years' deferred adjudication probation and fined $500. The trial court admonished appellant in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989). The written admonishments, however, incorrectly stated the punishment range as "Confinement in the Texas Department of Corrections for 2 to 10 years or in a Community Correctional Facility not to exceed one year, and an optional fine not to exceed $10,000." The actual punishment range was confinement for two to twenty years, and a fine up to $10,000. See Tex. Penal Code Ann. § 12.33 (Vernon 1974) (current version at Tex. Penal Code Ann. § 12.33 (Vernon 1994)).
        Appellant entered his plea of guilty and was sentenced according to the plea bargain agreement to four years' deferred adjudication probation and a $500 fine. Subsequently, the State filed a motion to adjudicate on the ground that appellant had violated his probationary conditions. The trial court granted the motion, found appellant guilty, and sentenced him to twenty years' confinement. Appellant filed a notice of appeal that does not comply with the specific notice requirements in Rule 40(b)(1) of the Texas Rules of Appellate Procedure. FN:1 Appellant contends that the trial court's incorrect admonishment, coupled with the fact that he was sentenced outside the maximum stated punishment range, violates the due process requirements of the Federal and Texas Constitutions and violates article 26.13.
        A defendant who is sentenced to deferred adjudication probation in accordance with a plea bargain agreement must comply with the specific notice requirements of Rule 40(b)(1) to appeal his conviction even if he was later adjudicated and sentenced to a term of confinement without the benefit of a plea bargain agreement. Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996). Otherwise, a general notice of appeal in an appeal from a negotiated plea only confers jurisdiction on this Court to consider jurisdictional issues. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994), cert. denied, 114 S. Ct. 2684 (1994). In addition to jurisdictional issues, the court of criminal appeals has recently held that a general notice of appeal confers jurisdiction on this Court to consider the voluntariness of appellant's negotiated plea. Flowers v. State, No. 1431-95, slip op. at 5 (Tex. Crim. App. Oct. 30, 1996). Accordingly, we have jurisdiction to consider the issues raised by appellant only if they are jurisdictional or contest the voluntariness of his plea.
        Jurisdiction concerns the power of a court to hear and determine an issue; it is the right of a court to adjudicate the subject matter of a given case. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Appellant's complaint that he received an incorrect pre-plea admonishment is not a jurisdictional one. See Penny v. State, 880 S.W.2d 59, 61 (Tex. App.--Dallas 1994, no pet.).
        Furthermore, appellant does not contest the voluntariness of his plea. Appellant does not argue in his brief that his plea was rendered involuntary by the incorrect admonishment. The State's brief, on the other hand, unequivocally states that "Appellant does not assert that his plea was involuntary." Appellant does not challenge this assertion either in his brief or in his reply brief, which he filed after his original brief for the sole purpose of addressing the jurisdiction issue raised in the State's brief. Moreover, the record in this case clearly reflects that appellant, in fact, understood the actual punishment range despite the incorrect admonishment. During the plea hearing, he stated under questioning from his defense attorney that he understood the punishment range was "2 years to 20 -- maximum of 20 years in the State penitentiary as well as a possible fine of up to $10,000." At the adjudication hearing, the trial court asked appellant what he thought was going to happen if he got "busted" again while on probation. Appellant replied, "That I was going to get two to twenty." Thus, the record reflects that appellant's plea was not rendered involuntary by the incorrect admonishment because he knew the correct punishment range.
        Appellant contends that we must reverse because of the decision in Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980). In Weekley, the court reversed a conviction based on a guilty plea because the trial court told the defendant the maximum punishment was twenty years' confinement and then assessed punishment at twenty-five. Id. at 97. Like here, voluntariness of the plea was not in issue. The Weekley case, however, is inapposite because it was not an appeal from a negotiated plea. Contrary to appellant's contention, Weekley does not mandate reversal in this case.
        We conclude that appellant has not raised a jurisdictional issue nor has he contested the voluntariness of his guilty plea. Under Rule 40(b)(1), we have no jurisdiction to consider appellant's complaint.
        Accordingly, we dismiss this appeal for want of jurisdiction.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
921234F.U05
 
FN:1 Rule 40(b)(1) provides that, if a defendant is convicted based upon his plea of guilty and his sentence does not exceed that contemplated in the plea bargain agreement,
 
    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.
File Date[11-25-96]
File Name[921234F]