Shaun Kervett Dean v. State ( 1995 )

Dean-SK v. State

IN THE

TENTH COURT OF APPEALS

No. 10-95-145-CR

&

No. 10-95-146-CR

     SHAUN KERVETT DEAN,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the Criminal District Court No. 4

Dallas County, Texas

Trial Court # F94-41984-K & F94-52708-LK

MEMORANDUM OPINION

      On June 15, 1994, Shaun Dean pleaded guilty to unauthorized use of a vehicle and theft pursuant to a plea-bargain agreement with the State. Tex. Penal Code Ann. §§ 31.01, 31.07 (Vernon 1994). The court accepted his pleas and assessed the agreed punishments of four years deferred adjudication probation and a $300 fine on each offense. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 1995). The State filed motions to adjudicate premised on a new theft allegation. On March 23, 1995, Dean pleaded "true" to the allegations in the State's motions in exchange for punishment recommendations of concurrent ten years' incarceration. The court accepted the agreement and assessed punishment accordingly. Dean then appealed his convictions, arguing that his pleas of true were involuntary because they were based on a tainted conviction for the alleged theft offense. However, because we find that Dean failed to invoke our jurisdiction, we dismiss his appeals.

      To appeal from a conviction "rendered upon [a] plea of guilty [when] the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant . . . the notice [of appeal] 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). "If [the defendant] wishes to appeal a matter which is nonjurisdictional in nature . . . he must conform to the requirements of the [Rule] and include within his notice what the grounds of appeal are and the fact that he has received the permission of the trial court to appeal those matters." Jones v. State, 796 S.W.2d 183, 186 (Tex. Crim. App. 1990). If the notice does not meet the requirements of Rule 40(b)(1), it is a general notice of appeal and only invokes our jurisdiction to consider jurisdictional complaints. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 114 S. Ct. 2684, 129 L. Ed. 2d 816 (1994); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994); Morrison v. State, 896 S.W.2d 392, 393 (Tex. App.—Waco 1995, no pet.).

      Dean's notice of appeal is a "general" notice because it does not contain the statements required by Rule 40(b)(1). Id. Therefore, he has only invoked our jurisdiction to consider jurisdictional complaints. Id. The voluntariness of his pleas are not jurisdictional matters. Martinez v. State, 04-93-00776-CR, slip op. at 2-3, 1995 WL 390622 *1 (Tex. App.—San Antonio, July 5, 1995, no pet. h.) (voluntariness of a guilty plea is not jurisdictional); Forcha v. State, 894 S.W.2d 506, 509 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (an involuntary plea is a nonjurisdictional defect); see also Shepherd v. State, 884 S.W.2d 571, 571 (Tex. App.—Waco 1994, no pet.) (a claim that the defendant was improperly admonished is not reviewable under a general notice of appeal).

      Additionally, by these appeals, Dean seeks to have this court review the decision to adjudicate guilt after he was placed on deferred adjudication-probation. The right to appeal from a criminal proceeding is a statutory right. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Thus, the legislature may limit the issues that the defendant is allowed to bring to the appellate court. Id. The legislature has expressly prohibited an appeal from the decision to adjudicate, declaring that "[n]o appeal may be taken from this determination." Tex. Code Crim. Proc. Ann. art. 42.12, §5(b); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). "[W]hen a legislative enactment says an accused may not appeal a determination to adjudicate, there is no right to do so." Phynes, 828 S.W.2d at 2. Thus, the proper procedure is to dismiss any points which raise a complaint concerning the decision to adjudicate. Id.; Olowosuko, 826 S.W.2d at 942. Where, as here, all points relate to this decision, the proper course is to dismiss the entire cause. Phynes, 828 S.W.2d at 2. Thus, for this alternative reason, we again conclude that we do not have jurisdiction to consider Dean's sole point of error. Id.; see also Buchanan v. State, 881 S.W.2d 376, 380 (Tex. App.—Houston [1st Dist.] 1994, pet. granted).

      Thus, because Dean filed general notices of appeal, he has failed to invoke our jurisdiction, and we must dismiss these appeals. Lyon, 872 S.W.2d at 736; Davis, 870 S.W.2d at 47; Morrison, 896 S.W.2d at 394. Additionally, we must dismiss these appeals because we do not have jurisdiction to review the decision to adjudicate his guilt. Phynes, 828 S.W.2d at 2; Olowosuko, 826 S.W.2d at 942. Therefore, these appeals are dismissed for want of jurisdiction.

                                                                                 PER CURIAM

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed December 19, 1995

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ity, Barbara is incompetent to operate a motor vehicle safely.

      Willard states in his deposition that he is aware of his mother’s many ailments but she has been driving regularly without incident and currently holds a valid Texas drivers license. Lloyd adduced contrary evidence through Dr. Weldon. He states that based on Barbara’s medical condition, a reasonable layperson in Willard’s position should have known that she was incompetent to drive safely.

      When we review all the evidence in favor of Lloyd and disregard all contrary evidence, we find that the evidence raises a question of fact on the issues of incompetence and Willard’s awareness of his mother’s incompetence. The no-evidence motion with regard to Lloyd’s claim of negligent entrustment should have been denied.

      With regard to the traditional motion for summary judgment on negligent entrustment, we find that Willard failed to establish his entitlement to judgment as a matter of law. The motion for summary judgment on negligent entrustment should have been denied. Accordingly, we sustain point one.

      The judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Reversed and remanded

Opinion delivered and filed April 11, 2001

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