Debra Wyatt White v. The State of Texas--Appeal from County Court of Leon County

IN THE

TENTH COURT OF APPEALS

No. 10-94-008-CR

DEBRA WYATT WHITE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Leon County, Texas

Trial Court # 11639

MEMORANDUM OPINION

Debra White was charged by information with driving while intoxicated on or about January 12, 1991. She entered a plea of nolo contendere on October 10 and was sentenced to two years confinement in the county jail, probated for two years, plus a $750 fine. White signed a document entitled "Misdemeanor Nolo Contendere; Waiver of Rights" in which she waived her right to appeal.

In January 1993, the State filed a motion to revoke White's probation and later filed an amended motion. White filed a "Motion to Set Aside Judgment" on June 4, asserting double jeopardy, but the court did not rule on the motion. The court denied the State's motion to revoke probation but extended White's probation for one year and ordered her to serve time in the county jail "for a period of 48 consecutive hours every week for a period of 12 weeks." White filed a notice of appeal on August 4.

White's sole point is that the court erred in failing to grant her motion to set aside the judgment based on double jeopardy. Because we do not have jurisdiction, we dismiss the appeal.

A defendant who pleads guilty or nolo contendere under article 1.15 of the Code of Criminal Procedure when the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and her attorney may not prosecute an appeal for a nonjurisdictional error that occurred prior to the entry of the plea unless (1) the notice of appeal states that the trial court granted permission to appeal or (2) the notice of appeal specifies that the matters raised on appeal were raised by written motion prior to trial and ruled on before trial. Tex. R. App. P. 40(b)(1).

If a notice of appeal does not meet the requirements of Rule 40(b)(1), the notice is a general notice and does not confer jurisdiction on a court of appeals to review nonjurisdictional defects or error that occurred before or after the entry of the plea. See Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994); Wolfe v. State, 878 S.W.2d 645, 646 (Tex. App. Dallas 1994, no pet. h.).

White filed a general notice of appeal more than one year after entering her plea of nolo contendere, pursuant to a plea bargain agreement under which the court assessed the punishment agreed upon. No pretrial motions appear in the record. White's general notice of appeal does not meet the requirements of Rule 40(b)(1) and thus fails to confer jurisdiction on this court.

We dismiss the appeal.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed

Opinion delivered and filed September 28, 1994

Do not publish