Leonard Hargrove v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00279-CR



Leonard Hargrove, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 44,913, HONORABLE MARTHA TRUDO, JUDGE PRESIDING

PER CURIAM

Appellant was charged by indictment with aggravated robbery (count one) and attempted capital murder (count two). Pursuant to a negotiated agreement, appellant pleaded guilty to count one. In return, the State waived count two and recommended that punishment be "capped" at twenty-five years. After accepting appellant's guilty plea and hearing evidence relevant to punishment, the district court adjudged him guilty of aggravated robbery and assessed punishment at imprisonment for twenty years. Tex. Penal Code Ann. § 29.03 (West 1994).

Appellant's brief contains two points of error complaining of evidentiary rulings at trial. Because appellant entered a negotiated guilty plea and the punishment assessed does not exceed that to which he and his attorney agreed, we have jurisdiction to consider these points only if the district court gave appellant permission to appeal nonjurisdictional matters. 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); Hutchins v. State, 887 S.W.2d 207, 209 (Tex. App.--Austin 1994, pet. ref'd); Fowler v. State, 874 S.W.2d 112, 114 (Tex. App.--Austin 1994, pet. ref'd); Tex. R. App. P. 40(b)(1). Appellant's notice of appeal does not recite that such permission was granted.

The State has filed a motion to dismiss the appeal for want of jurisdiction. The motion is supported by an affidavit from the district judge stating that she did not grant appellant or his attorney permission to appeal any nonjurisdictional defect.

Appellant refers us to Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992). In that case, the notice of appeal did not conform to the "but clause" of rule 40(b)(1) but the Court of Criminal Appeals deemed the district court's separate "order limiting appeal" an adequate alternative. No similar order appears in the transcript of this cause. Instead, appellant relies on the form order appointing counsel on appeal. There is nothing in this order indicating that the court intended to grant permission to appeal nonjurisdictional matters. Hutchins, 877 S.W.2d at 210.

Under rule 40(b)(1) as currently interpreted by the Court of Criminal Appeals, we are without jurisdiction to consider the points of error brought forward by appellant. The State's motion to dismiss for want of jurisdiction is granted.

The appeal is dismissed.

Before Chief Justice Carroll, Justices Aboussie and Jones

Appeal Dismissed for Want of Jurisdiction on State's Motion

Filed: August 16, 1995

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