Antonio Limon v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-00-00276-CR
Antonio LIMON,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-2892
Honorable Mark Luitjen, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: April 11, 2001

DISMISSED FOR LACK OF JURISDICTION

Antonio Limon pled nolo contendere to a charge of aggravated assault with serious bodily injury arising from an incident during a basketball game in which Limon intentionally struck an opposing player in the face with his elbow. In a plea bargain negotiated with the prosecution, Limon agreed to accept a sentence of up to six years in prison. The trial court sentenced him to five years. Limon now appeals his conviction and sentence claiming his trial counsel provided ineffective assistance and the trial court improperly denied him a hearing on his motion for new trial. We dismiss the appeal for lack of jurisdiction.

If an appeal is taken from a judgment rendered on a plea of 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)). This limitation of appeal applies to errors occurring before and after the guilty plea. Cooper v. State, No. 1100-99, slip op. at 6-7, 2001 WL 321579, at *1 (Tex. Crim App. Apr. 4, 2001) (concluding Rule 25.2(b)(3) limits appeal in a plea bargain case to those specified by statute); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994) (former rule limited appeal for nonjurisdictional defects occurring before or after the guilty plea).

Because the trial court did not grant Limon permission to appeal, we have no jurisdiction to consider his claims of ineffective assistance of counsel during the sentencing hearing. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994); Luna v. State, 985 S.W.2d 128, 130 (Tex. App.-San Antonio 1998, pet. ref'd). We have no jurisdiction to consider whether ineffective assistance of counsel rendered Limon's plea involuntary. Cooper, 2001 WL 321579, at *1. Finally, we have no jurisdiction to review Limon's complaint that the trial court should have conducted a hearing on the motion for new trial. Hutchins v. State, 887 S.W.2d 207, 209, 211 (Tex. App.-Austin 1994, pet. ref'd).

Accordingly, we dismiss the appeal for lack of jurisdiction.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH