David Aponte v. The State of Texas--Appeal from County Criminal Court at Law No 14 of Harris County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00167-CR
______________________________
DAVID APONTE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 14
Harris County, Texas
Trial Court No. 1058805
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N

David Aponte appeals his conviction for misdemeanor criminal mischief. The trial court sentenced him to the maximum available term, one year in county jail. The record reflects that Aponte pleaded guilty as part of a plea bargaining agreement, which the trial court accepted. Further, despite a statement in the judgment that Aponte had waived counsel, it is otherwise clear from the record that he was represented by appointed counsel.

Aponte states in his Notice of Appeal that the trial court denied him permission to appeal, but that he seeks to show on appeal that his plea was involuntary because of ineffective assistance of counsel.

The first issue is whether we have jurisdiction to consider Aponte's appeal. The record does not show that Aponte raised his issues by a pretrial written motion or that he has the trial court's permission to appeal. We recently addressed this situation in Lenox v. State, No. 06-00-00246-CR, 2001 WL 928609 (Tex. App.-Texarkana Aug. 16, 2001, no pet. h.). In that opinion, we reviewed the background of Tex. R. App. P. 25.2 and Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979), the rule and statute that restrict the availability of appeal in situations involving a plea bargaining agreement.

An appellant invokes the jurisdiction of this court by filing a written Notice of Appeal. Lemmons v. State, 818 S.W.2d 58, 60 (Tex. Crim. App. 1991) (citing Carter v. State, 656 S.W.2d 468, 469 (Tex. Crim. App. 1983)). But as the Texas Court of Criminal Appeals acknowledged in Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994), and Jones v. State, 796 S.W.2d 183, 186-87 (Tex. Crim. App. 1990), the extent of our jurisdiction can be limited by legislation. Article 44.02 represents such a limitation in a plea-bargained misdemeanor appeal. Lenox, 2001 WL 928609, at *4.

We are without jurisdiction to consider the voluntariness of Aponte's plea. In Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001), the Texas Court of Criminal Appeals construed Rule 25.2(b)(3) as being in harmony with the proviso portion of Article 44.02. The court held that both Article 44.02 and Rule 25.2(b)(3) restricted a defendant from appealing the voluntariness of his plea without the trial court's permission. Id. at 79. The record does not show that Aponte has the trial court's permission to appeal the voluntariness of his plea. Consequently, we are without jurisdiction to consider that issue. (1)

The appeal is dismissed for want of jurisdiction.

 

Ben Z. Grant

Justice

 

Date Submitted: November 27, 2001

Date Decided: November 27, 2001

 

Do Not Publish

1. A plea bargain by its nature incorporates a voluntary and understanding plea of guilty, and thus its process can only be triggered when the plea bargain and guilty plea are voluntarily and understandably made; however, in the Cooper case, the Texas Court of Criminal Appeals determined that an involuntary plea may be raised by a motion for new trial and habeas corpus, but not on appeal. We are bound to follow this ruling. Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001).