Cecil James Hayes, II v. State ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-02-203 CR NO. 09-02-204 CR ____________________

CECIL JAMES HAYES, II, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 85799, 86022

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O P I N I O N

Pursuant to an agreed plea bargain, Cecil James Hayes, II pleaded guilty to two counts, sexual assault of a child and arson. The trial court sentenced him to ten years confinement in the Texas Department of Criminal Justice, Institutional Division ("TDCJ") on each count, with the sentences to run concurrently.

The plea bargain agreement provided for (1) a "cap" of ten years on the sentence in the TDJC; (2) the state to dismiss a third case; and (3) Hayes to be allowed to serve Texas penitentiary time in another state, concurrently with punishment assessed for an offense in the other state, with any balance of Texas time to be completed in Texas.

At the sentencing hearing, defense counsel requested that the court order any penitentiary time to run concurrently with the time in the other state, pursuant to the plea agreement. The trial court declined to do so, reasoning it could not issue such a ruling because there was not presently a sentence in the other state. The trial judge stated: "The last judge that handles the case is the one that has to run it concurrent. I can't run something concurrent-- . . .. I can't run something concurrent that hasn't happened yet. . . ." Hayes requested to withdraw his plea, but was told by the court: "We are not going to let that happen. What is going to happen is Missouri will have to run it concurrent with Texas."

Hayes brings one issue. He maintains the trial court erred in accepting his guilty plea as there is no showing the plea was made freely and voluntarily as required by article 26.13 of the Texas Code of Criminal Procedure. The State contends we lack jurisdiction and should dismiss the appeal, as Hayes's general notice of appeal fails to comply with Tex. R. App. P. 25.2(b)(3). We agree.

Because the limitation on the upper range of punishment was part of a plea bargain agreement, the notice of appeal must comply with the rules of appellate procedure that apply to appeals from plea bargained convictions. Delatorre v. State, 957 S.W.2d 145 (Tex. App.--Austin 1997, pet. ref'd). Where a defendant appeals from a judgment rendered on a plea of guilty or nolo contendere and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must: (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3).

The Texas Court of Criminal Appeals recently held that the courts of appeal lack jurisdiction to consider an appeal, even for voluntariness issues, where the appellant has failed to comply with the notice requirements of Rule 25.2(b) after having pleaded guilty in a plea-bargained, felony case. See Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001). The Cooper Court also notes that meritorious claims of involuntary pleas may be raised by other means, such as a motion for new trial and habeas corpus. Id. at 82.

Here, the trial court did not follow the plea bargain agreement, but it did not exceed the punishment recommended by the State, which was a maximum of ten years in TDCJ. Thus, to invoke our jurisdiction Hayes was required to comply with Rule 25.2(b). Since he did not, we dismiss his appeal for want of jurisdiction.  

DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Submitted on October 21, 2002

Opinion Delivered October 30, 2002

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.