Michael O'Neil v. State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-00-00724-CR
Michael O'NEIL,
Appellant
v.
The STATE of Texas,
Appellee

From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-0743
Honorable Mark R. Luitjen, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 9, 2001

DISMISSED FOR LACK OF JURISDICTION

Michael O'Neil pled guilty to robbery pursuant to a plea bargain in exchange for the State's recommendation of community supervision and punishment not to exceed ten years and a fine of $1,000. O'Neil did not apply for deferred adjudication and the plea bargain agreement was silent on the issue. The trial court accepted O'Neil's plea, deferred adjudication, and placed O'Neil on community supervision for ten years. The State later moved to adjudicate guilt. After the hearing, the trial court adjudicated O'Neil guilty and sentenced him to fifteen years imprisonment and a fine of $1,000.00. O'Neil timely filed a general notice of appeal.

When a judgment is rendered on the defendant's plea of guilty or nolo contendere pursuant to a plea bargain in a felony case, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the defendant's notice of appeal must (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3); Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000). The requirements of Rule 25.2(b)(3) apply to an appeal from an adjudication of guilt if the defendant's plea was pursuant to a plea bargain and the punishment assessed is in accordance with the agreement. See Watson v. State, 924 S.W.2d 711 (Tex. Crim. App. 1996).

When Rule 25.2(b)(3) applies, a timely notice of appeal complying with the Rule is necessary to confer jurisdiction on this court. See State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). If a general notice of appeal is filed, we may review only issues concerning the trial court's jurisdiction. See Cooper v. State, No. 1100-99, slip op. at 6-7, 2001 WL 321579, at *1 (Tex. Crim App. Apr. 4, 2001) (Rule 25.2(b)(3) limits appeal in a plea bargain case to those grounds specified in the Rule); Connolly v. State, 983 S.W.2d 738, 740-41 (Tex. Crim. App. 1999) (no jurisdiction to consider claims of error in the adjudication of guilt process.); Martinez v. State, 5 S.W.3d 722, 724-25 (Tex. App.-San Antonio 1999, no pet.) (court of appeals may consider jurisdictional issues under general notice of appeal in cases in which Rule 25.2(b)(3) applies).

O'Neil filed a general notice of appeal. His brief, filed April 2, 2001, raises only claims of error in the adjudication of guilt process and the voluntariness of his original plea. We do not have jurisdiction to consider these issues. See Cooper, 2001 WL 321579; Daniels v. State, 30 S.W.3d 407 (Tex. Crim. App. 2000); Connolly, 983 S.W.2d at 740-41. Because Rule 25.2(b)(3) appears to apply to this appeal and O'Neil's brief did not raise an issue over which we have jurisdiction when a general notice of appeal is filed, we ordered him to show cause why the appeal should not be dismissed for lack of jurisdiction.

O'Neil responded to our order by arguing that Rule 25.2(b)(3) does not apply because the plea bargain did not include deferred adjudication and because the court sentenced him to a term greater than the ten years agreed to in the plea bargain. We disagree. The plea agreement provided the State would recommend punishment not to exceed ten years confinement and a $1,000 fine. Deferred adjudication probation is "punishment." Ditto, 988 S.W.2d at 238. "Deferred adjudication probation for ten years 'does not exceed ten years' [sic] confinement.' Thus, the punishment[] assessed fell within the terms of the plea bargain[]." Id. n.5. On later adjudication of guilt, the trial court had no further obligation to comply with the plea bargain and could sentence O'Neil to any term within the range allowed by law. See id. at 239. O'Neil also argues we have jurisdiction to review the voluntariness of his plea on direct appeal from the revocation of his deferred adjudication probation. Again, we disagree. See Cooper, 2001 WL 321579; Daniels, 30 S.W.3d at 408. We therefore dismiss this appeal for lack of jurisdiction.

PER CURIAM

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