EFRAIN BELTRAN GARZA v. STATE OF TEXAS--Appeal from 370th District Court of Hidalgo County

NUMBER 13-00-756-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

EFRAIN BELTRAN GARZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 370th District Court

of Hidalgo County, Texas.

O P I N I O N

Before Justices Dorsey, Hinojosa, Rodriguez

Opinion by Justice Dorsey

Pursuant to a plea-bargain agreement appellant, Efrain Garza, pleaded guilty to murder. The trial court followed the plea bargain and sentenced him to twenty-five years in prison. By two points of error he complains of ineffective assistance of counsel and that he was denied due process and due course of law. We dismiss the appeal for want of jurisdiction.

Jurisdiction

Because this case arises from a plea-bargain agreement the first question that confronts us is whether we have jurisdiction to review the claims before us. Yarbrough v. State, 57 S.W.3d 611, 615 (Tex. App.BTexarkana 2001, pet. ref=d) (appellate court has the obligation to determine its own jurisdiction). When a defendant pleads guilty to a felony, and the punishment assessed does not exceed that recommended by the prosecutor and agreed to by the defendant, the notice of appeal must state that the appeal is for a jurisdictional defect, or that the substance of the appeal was raised by written motion and ruled on before trial, or that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). See Cooper v. State, 45 S.W.3d 77, 79 (Tex. Crim. App. 2001) (Rule 25.2(b) limits appeal in every plea bargain, felony case).

Here the plea-bargain agreement provided that in exchange for appellant=s guilty plea to murder the State agreed not to request more than thirty years in prison. Appellant received twenty-five years in prison. Thus the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by appellant. Accordingly the notice of appeal must state that the appeal is for a jurisdictional defect, or that the substance of the appeal was raised by written motion and ruled on before trial, or that the trial court granted permission to appeal. Appellant's notice of appeal did not comply with this rule and, therefore, fails to confer jurisdiction on this Court. Whitt v. State, 45 S.W.3d 274, 275 (Tex. App. Austin 2001, no pet.). The court of criminal appeals has ruled that claims of ineffective assistance of counsel are non-jurisdictional. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994) (citing Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981)). Further Rule 25.2(b) does not permit the defendant to raise on appeal voluntariness of the plea. Cooper, 45 S.W.3d at 83.

The appeal is dismissed for want of jurisdiction.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 6th day of June, 2002.