Ernest Slade Wilson v. The State of Texas--Appeal from 115th District Court of Upshur County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00206-CR

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ERNEST S. WILSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 12,896

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Ernest S. Wilson appeals from the revocation of his felony community supervision. Wilson was convicted of forgery on February 14, 2002. The trial court assessed punishment at two years' imprisonment, but probated the sentence for a period of five years in accordance with the terms of the negotiated plea agreement. Thereafter, the State filed a motion to revoke Wilson's community supervision, alleging Wilson (among other things) failed to report to his community supervision officer, used cocaine, consumed alcohol, did not provide evidence of a sixth-grade education, failed to pay several fees, and did not attend a treatment facility as required.

On July 8, 2003, Wilson pled true to having violated the conditions of his community supervision. The trial court revoked the community supervision and sentenced Wilson to eighteen months' confinement in a state jail facility pursuant to a negotiated plea agreement on revocation. Griffin filed a pro se notice of appeal.

Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Wilson's notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended rules. The amended rules therefore apply to this appeal. Rule 25.2(a) was amended to read, in pertinent part:

(2) A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.

Tex. R. App. P. 25.2(a). The trial court filed a certification of defendant's right of appeal in accordance with Rule 25.2(a)(2). It states that this "is in a plea-bargain case, and the defendant has NO right of appeal."

We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Wilson pled true, and when adjudged guilty of that crime, he entered into a negotiated plea agreement as to punishment that the trial court did not exceed at sentencing. Under amended Rule 25.2(a)(2), Wilson was entitled to appeal only "those matters that were raised by written motion filed and ruled on before trial," or "after getting the trial court's permission to appeal." The trial court certified that neither of these circumstances apply by stating that there is no right of appeal. See Comb v. State, 101 S.W.3d 724 (Tex. App. Houston [1st Dist.] 2003, no pet.). //

We lack jurisdiction over this appeal, so we dismiss it.

Josh R. Morriss, III

Chief Justice

Date Submitted: October 21, 2003

Date Decided: October 22, 2003

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