Christopher C. Robinson v. The State of Texas--Appeal from 124th District Court of Gregg County

Christopher Charles Robinson appeals his conviction for felony failure to appear. Robinson pled guilty, as part of a plea agreement, to the failure to appear offense and to a separate charge of possession of cocaine with intent to deliver. The trial court sentenced him to five years' imprisonment for the failure to appear offense and twenty-five years' imprisonment for the possession offense, and ordered both sentences to run concurrently.

On the appeal of his conviction for failure to appear, Robinson contends his conviction constitutes a violation of his right to due process of law because it resulted from the trial court's error, at a hearing before his trial for the possession offense, in failing to suppress evidence associated with the possession charge. Robinson has also filed an appeal from his possession conviction, which we address by a separate opinion.

The record shows that, on November 6, 1998, the trial court held a hearing on Robinson's motion to suppress the evidence associated with the possession charge. The trial court overruled his motion. On November 20, 1998, Robinson requested a continuance of the trial set for that day. The trial court granted a three-day continuance. On November 23, 1998, Robinson failed to appear for trial.

Robinson contends that, had the trial court correctly ruled on his suppression motion in the possession case, there would have been no need for him to attend a trial on that charge. He contends his conviction for failure to appear should be overturned as a violation of his right to due process. The State contends this Court is without jurisdiction to consider this issue.

Under Tex. R. App. P. 25.2(b)(3), if the appellant is appealing from a judgment rendered on his plea of guilty under Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2002), and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must specify: (1) that the appeal is for a jurisdictional defect, (2) that the substance of the appeal was raised by written motion and ruled on before trial, or (3) that the trial court granted permission to appeal.

In his notice of appeal, Robinson asserts his claim was raised by a pretrial written motion and ruled on before trial. He relies on the pretrial motion to suppress filed in the possession case. The only pretrial motion shown by the record that was filed in this case was a motion to recuse the trial judge, but Robinson does not rely on this motion as a basis for his appeal. Because his motion to suppress filed in the possession case was not a pretrial motion filed in this case, this Court does not have jurisdiction to consider his claim.

Even if his pretrial motion to suppress in the possession case was sufficient to confer jurisdiction on this Court in this case, and even if the trial court erred in failing to suppress the evidence in the possession case-a question we have this day in No. 06-01-00208-CR, Chris Robinson v. The State of Texas, resolved against him-Robinson still had to make his due process challenge in the trial court. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Ennis v. State, 71 S.W.3d 804, 811 (Tex. App.-Texarkana 2002, no pet.). He did not; therefore, he has waived the issue on appeal.

The appeal is dismissed for want of jurisdiction.

Donald R. Ross

Justice

Date Submitted: August 6, 2002

Date Decided: August 27, 2002

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