TERRY JAMES LANGE v. THE STATE OF TEXAS--Appeal from 252nd District Court of Jefferson County

NUMBER 13-01-573-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

TERRY JAMES LANGE, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

 
On appeal from the 252nd District Court
of Jefferson County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Ya ez and Castillo
Opinion by Justice Castillo

Appellant Terry James Lange appeals his conviction for sexual assault of a child. (1) Lange pled guilty to the charge and was sentenced to six years in prison. We dismiss for want of jurisdiction.

Anders Brief

Appellant's court-appointed counsel has filed a brief stating that he has thoroughly reviewed the clerk's record and the court reporter's record in this case and found that this appeal is wholly frivolous. Anders v. California, 386 U.S. 738, 744 (1967). Counsel has certified that he has notified appellant of his right to file a pro se brief and filed a motion requesting an extension of time for appellant to file a pro se brief. We granted such extension. The period of such extension has passed and no pro se brief has been filed. Counsel has presented no arguable points of error to this Court. Counsel has given a professional evaluation of the record, demonstrating with references to both legal precedent and pages in the record why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).

Jurisdictional Requirements

We find that we have no jurisdiction over this case because appellant's notice of appeal fails to meet the jurisdictional requirements of Texas Rule of Appellate Procedure 25.2(b)(3). Tex R. App. P. 25.2(b)(3). Appellant filed a general notice of appeal.

A plea-bargaining defendant's right to appeal is limited under Texas law. A notice of appeal from a plea bargain must specify that: (1) the appeal is for a jurisdictional defect, (2) the substance of the appeal was raised by written motion and ruled on before trial, or (3) the trial court granted permission to appeal. Id.

We note that while the judgment notes that the plea was "unagreed," both the court reporter's record and the clerk's record provide evidence that there was an agreement between the State and appellant which constituted a plea bargain agreement. While there was no agreement as to a specific number of years incarceration, there was an agreement that the punishment would not exceed a cap of ten years in prison. The trial court, though stating that it was an unagreed plea, also stated that it could not exceed the ten-year cap and told appellant he would have a right to withdraw his plea if the court chose to assess a sentence that exceeded the ten-year cap. The trial court then assessed a punishment of six years in prison.

We find that there was a plea bargain in this case and the punishment assessed did not exceed the recommended punishment. See Lemoins v. State, 37 S.W.3d 556, 557-59 (Tex. App.-Beaumont 2001, no pet.)(where trial judge stated the pleas were unagreed but also announced there was an agreement to a cap which he would not exceed, there was a plea bargain and 25.2(b)(3) applied). Appellant therefore had to comply with the requirements of rule 25.2(b)(3). Delatorre v. State, 957 S.W.2d 145, 148-49 (Tex. Crim. App. 1997)(state's recommendation did not have to be for a finite period in order to be a valid plea bargain; agreement of cap of eleven years which was accepted by court triggered the requirements of former 40(b)(1)); Talley v. State, Nos. 05-01-01242-CR, 05-01-01247-CR, 05-01-01248-CR, 2002 Tex. App. LEXIS 3221, at *4-5 (Tex. App.-Dallas, May 8, 2002, no pet. h.)(agreement to cap the punishment constitutes a plea bargain and triggers the specific notice of appeal requirements of rule 25.2(b)(3)).

Accordingly, the notice of appeal filed by appellant was defective under Texas Rule of Appellate Procedure 25.2(b), as it fails to specify any of the three conditions which would grant this Court jurisdiction under rule 25.2(b)(3). There were no jurisdictional defects raised in the notice of appeal and none appear in the record. There were no written motions ruled on before trial. The jurisdiction of this Court, then, has not been invoked.

Conclusion

We dismiss this appeal for want of jurisdiction. As we have no jurisdiction over this appeal, other than to dismiss it, Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998), we cannot and do not address appellate counsel's motion to withdraw. ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

 

Opinion delivered and filed

this 25th day of July, 2002.

1. Tex. Pen. Code Ann. 22.011(a)(2)(A)(Vernon Supp. 2002).