Carl Lee Wingrove v. State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-00-00720-CR
Carl Lee WINGROVE,
Appellant
v.
STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-3711
Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: July 18, 2001

MOTION TO WITHDRAW GRANTED; DISMISSED FOR LACK OF JURISDICTION

Carl Wingrove pled nolo contendere to theft-enhanced and agreed to a maximum sentence of two years in the penitentiary. The trial court sentenced Wingrove within the terms of the plea bargain to eighteen months in prison in a special needs unit and a $1,000.00 fine. Wingrove's court-appointed attorney on appeal filed a brief in which counsel concludes this appeal is frivolous and without merit. Counsel also filed a motion to withdraw.

Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Specifically, counsel states Wingrove was provided with a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief if he wished. Wingrove filed a pro se brief. (1)

In his pro se brief and objection to the Anders brief, Wingrove raises the following points for appeal: (1) his plea was involuntary due to ineffective assistance of counsel, and (2) he was incompetent to enter a voluntary plea. (2) In conjunction with his ineffectiveness claim, Wingrove also suggests his arrest was improper because the police lacked probable cause.

If an appeal is taken from a judgment rendered on a plea of guilty or nolo contendere and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, "the substance of the appeal must have been raised by written motion and ruled on before trial (unless the appeal is for a jurisdictional defect or the trial court granted permission to appeal)." Young v. State, 8 S.W.3d 656, 667 (Tex. Crim. App. 2000) (citing Tex. R. App. P. 25.2(b)(3)); see also Cooper v. State, No. 1100-99, slip op. at 6-7, 2001 WL 321579, at *1 (Tex. Crim App. Apr. 4, 2001). Wingrove filed a general notice of appeal. The record does not contain a written motion to suppress evidence. There is nothing in the record to suggest the trial court lacked jurisdiction, nor is there any evidence the trial court gave permission to appeal. We have no jurisdiction to consider Wingrove's complaints regarding ineffective assistance of counsel and the impropriety of his arrest. Tex. R. App. P. 25.2(b)(3).

Similarly we have no jurisdiction to consider Wingrove's complaint that the trial court failed to have him examined for competency. A claim of incompetence is a claim the plea was involuntary. Because Rule 25.2(b)(3) applies in this case, we have no jurisdiction to review the competency issue. Lenox v. State, 2001 WL 629615, at *1 (Tex. App.-Texarkana June 8, 2001); Lawson v. State, 2001 WL 468119, at *1 (Tex. App.-Waco May 2, 2001); see Cooper, slip op. at 11, 2001 WL 321579, at *1 ("meritorious claims of involuntary pleas may be raised by other procedures").

The appeal is dismissed for lack of jurisdiction. We grant the motion to withdraw filed by Wingrove's counsel.

PER CURIAM

DO NOT PUBLISH

1. The State waived its right to file a brief.

2. Wingrove also complains his counsel was ineffective on appeal. Because we conclude we have no jurisdiction over the appeal, we do not reach this issue.