Darren Phillips v. The State of Texas--Appeal from 167th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00562-CR
Darren Phillips, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0936141, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
Appellant Darren Phillips was convicted of the offense of attempted aggravated sexual assault of a child. See Tex. Penal Code Ann. 22.021 (West Supp. 1997). The trial court assessed appellant's punishment at imprisonment for ten years. Imposition of sentence was suspended and appellant was placed on community supervision. Appellant asserts that the "trial court erred in ordering appellant to register as a sexual offender because registration is an ex post facto penalty prohibited" by federal and state constitutional provisions. The State urges that we dismiss the appeal because we do not have jurisdiction. We agree; we do not have jurisdiction of this appeal.

Appellant entered a guilty plea pursuant to a plea bargain agreement. The punishment assessed by the trial court does not exceed the punishment recommended by the State and agreed to by appellant and his attorney. Therefore, appellant's right to appeal is limited and controlled by the Rules of Appellate Procedure.

 

. . . [I]f the judgment was rendered upon his pleas of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial . . .

Tex. R. App. P. 40(b)(1). (In effect when notice of appeal filed; now See Tex. R. App. P. 25.2(b)(3)).

We quote the substance of appellant's notice of appeal:

 

Defendant Darren Phillips plead guilty to the offense of attempted aggravated sexual assault of a child. The punishment assessed by the Court, recommended by the District Attorney and agreed to by Defendant Phillips and his attorney included a ten (10) year period of probation. On July 29th, 1996, Defendant Phillips was sentenced. The Court imposed a condition of probation which has not been recommended by the district attorney, nor agreed to by Defendant Phillips and his attorney. This condition of probation required Defendant Phillips to register as a sexual offender. Tex. Rev. Civ. St. Art. 6252-13c.1. This condition is unconstitutional as applied to Defendant Phillips. Accordingly, Defendant Phillips hereby gives notice of his intention to appeal to the Court of Appeals for the Third Judicial District of Texas, sitting in Austin, Texas.

 

Appellant's notice of appeal does not state that the trial court granted permission for him to appeal, and it does not specify any matter raised by written motion ruled on before trial. The requirements of Rule 40 (b)(1) have not been met. We do not have jurisdiction of this appeal. See Rhem v. State, 873 S.W.2d 383, 384 (Tex. Crim. App. 1994); Payne v. State, 931 S.W.2d 56, 57 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd); Solis v. State, 890 S.W.2d 518, 520 (Tex. App.--Dallas 1994, no pet.).

Appellant argues that Rule 40(b)(1) by its terms is simply inapposite, because the objectionable condition of community supervision requiring appellant to register as a sexual offender was imposed after appellant entered his guilty plea. Appellant is incorrect; Rule 40(b)(1) does apply. The Court of Criminal Appeals has interpreted Rule 40(b)(1) to apply to matters occurring both before and after a defendant enters a guilty plea. Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994). Other than jurisdictional issues, "Rule 40(b) (1) requires a defendant in an appeal from a plea bargain conviction, to obtain the trial court's permission to appeal any matters in the case except for those matters raised by written motion and ruled on before trial." Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994); Rhem v. State, 873 S.W.2d at 384.

If appellant's contention is that the condition of community supervision requiring him to register as a sexual offender must be recommended by the State and agreed to by appellant and his attorney, we do not agree. We note that at the time this condition was imposed, appellant did not urge that the imposition of the condition breached the plea bargain agreement or request to withdraw his plea. Appellant wants the advantage of his plea bargain, but wants it enforced without the registration condition. The community supervision condition requiring appellant to register as a sexual offender is a statutory condition. Since 1991, trial courts have been expressly authorized to require registration as a condition of community supervision in cases involving a reportable conviction or adjudication. Act of May 26, 1991, 72d Leg., R.S., ch. 572, 2, 1991, Tex. Gen. Laws 2029, 2030-31 (Tex. Code Crim. Proc. Ann. art. 42.12, 11(a)(16), since amended). In 1995, registration was made a mandatory condition of supervision. See Tex. Code Crim Proc. Ann. art. 42.12, 11(e) (West Supp. 1997). Appellant was granted community supervision on July 29, 1996. The purpose of the statutory condition requiring registration of sexual offenders is not punitive. Registration serves the legitimate purposes of rehabilitating the offender and, more importantly protecting the public.

Recently, this Court considered an appeal that included a contention similar to that of the appellant in this appeal. See Perez v. State, 938 S.W.2d 761 (Tex. App.--Austin 1997, pet. ref'd). That appeal was dismissed for want of jurisdiction, because notice of appeal had been given untimely. However, even though the court held the appeal was not properly before it, the court discussed and found without merit Perez's points of error. This Court's discussion in part III of the Perez opinion concerning Perez's ex post facto contention is applicable to appellant's ex post facto contention in this appeal. Perez v. State 938 S.W.2d at 763-64.

We dismiss this appeal for want of jurisdiction.

 

Carl E .F. Dally, Justice

Before Chief Justice Carroll, Justices Aboussie and Dally*

Dismissed for Want of Jurisdiction

Filed: September 11, 1997

Do Not Publish

 

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).

ents of Rule 40 (b)(1) have not been met. We do not have jurisdiction of this appeal. See Rhem v. State, 873 S.W.2d 383, 384 (Tex. Crim. App. 1994); Payne v. State, 931 S.W.2d 56, 57 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd); Solis v. State, 890 S.W.2d 518, 520 (Tex. App.--Dallas 1994, no pet.).

Appellant argues that Rule 40(b)(1) by its terms is simply inapposite, beca