Sean Maurice Hamilton v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-165-CR

SEAN MAURICE HAMILTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From Criminal District Court No. 2

Dallas County, Texas

Trial Court # F88-91735-I

O P I N I O N

Appellant Sean Maurice Hamilton was charged by indictment with the offense of aggravated robbery. Tex. Penal Code Ann. 29.03. The indictment charged Appellant with using and exhibiting a deadly weapon, to-wit: a firearm.

On June 21, 1989, the State and Appellant entered into a plea bargain agreement, approved by the trial court, after which Appellant pled guilty. After hearing evidence, the trial court placed Appellant on deferred adjudication probation for six years plus a $1,000 fine.

On December 13, 1993, the trial court held a hearing on the State's motion to proceed with adjudication of guilt. Appellant pled not true to the alleged probation violations. After a hearing, the trial court found the allegations to be true and granted the State's motion. The trial court then accepted the guilty plea Appellant entered on June 21, 1989, and assessed Appellant's punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division, and a fine of $1,000. After entry of judgment, Appellant filed a motion for a new trial, which the trial court denied, after which appellant filed a general notice of appeal.

Appellant comes to this court on two points of error as follows:

(1)Appellant's plea of guilty to the indictment was rendered involuntary by the failure of the trial judge to admonish Appellant of the possible consequences of a violation of deferred adjudication probation pursuant to Tex. Code Crim. Proc. Ann. art. 42.12, 5(a).

(2)Appellant's plea of true to the State's motion to proceed to adjudication of guilt was rendered involuntary by the failure of the trial judge to admonish Appellant of the possible consequences of a violation of deferred adjudication probation pursuant to Tex. Code Crim. Proc. Ann. art. 42.12, 5(a).

We wish to point out that after careful examination of the record, we find that Appellant pled "not true" to the alleged probation violations, contrary to Appellant's assertion that he pled "true" to the alleged probation violations. However, this does not affect our disposition of the case.

This case comes under the provisions of Rule 40(b)(1), Tex. R. App. P., the pertinent portions of which provide:

. . . [I]f the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, 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 . . . .

In the case at bar, the State, the defendant and his counsel entered into a plea bargain agreement after which the Defendant entered a plea of guilty and the trial court accepted the plea bargain agreement and set the punishment in accordance therewith. That is to say, our case falls squarely within Rule 40(b)(1).

A general notice of appeal does not confer jurisdiction on a court of appeals to consider defects that occur before or after entry of a plea or a trial error that occurs before or after the entry of a plea. Davis v. State, 870 S.W.2d 43 (Tex. Crim. App. 1994).

A claim that the trial court did not give proper admonishments before accepting a guilty plea involved trial error, not a jurisdictional defect, and thus cannot be raised on appeal absent the trial court's permission to appeal. Shepherd v. State, 884 S.W.2d 571 (Tex. App. Waco 1994, no pet.); Penny v. State, 880 S.W.2d 59, 61 (Tex. App. Dallas 1994, no pet.).

A defendant appealing from a plea bargain conviction must obtain the trial court's permission to appeal any matter in the case except for those matters raised by written motion and ruled on before trial; a defendant's "general" notice of appeal confers no jurisdiction on a reviewing court to address nonjurisdictional defects or errors that occur before or after entry of the plea. Lyon v. State, 872 S.W.2d 732, 735, 736 (Tex. Crim. App. 1994), cert. denied, 114 S. Ct. 2684, 129 L. Ed. 2d 816 (1994).

Under the above decisions, we have no jurisdiction in the case at bar to consider Appellant's claims that he was not properly admonished. The appeal is dismissed for want of jurisdiction.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Justice James (Retired)

Appeal Dismissed

Opinion delivered and filed December 19, 1995

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