Herbert Lee Boutte v. State ( 2000 )

Herbert Lee Boutte v. State of Texas

  IN THE

TENTH COURT OF APPEALS

Nos. 10-99-177-CR & 10-99-178-CR

     HERBERT LEE BOUTTE,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 297th District Court

Tarrant County, Texas

Trial Court Nos. 0609023D & 0609024D

MEMORANDUM OPINION

      Can a criminal defendant who plead guilty bring an appeal without complying with the Rules of Appellate Procedure? We hold that by failing to comply with the rules, the defendant has not invoked our jurisdiction to consider this appeal, and it must be dismissed.

      Herbert Lee Boutte was indicted for two separate offenses of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02 (Vernon 1994). On September 17, 1996, Boutte entered a plea of guilty to both offenses and accepted a plea bargain offer for ten years of deferred adjudication on both offenses. Pursuant to the plea bargain agreement, the trial court deferred an adjudication of Boutte’s guilt and placed him on community supervision for ten years. On June 3, 1998, the State filed a petition to proceed to adjudication in both causes. On May 27, 1999, the trial court determined there had been a violation of Boutte’s terms of community supervision and adjudicated Boutte guilty of both charges of aggravated assault. The trial court affirmatively found the use or exhibition of a deadly weapon during both offenses and sentenced Boutte to two years imprisonment for each with both convictions to run concurrently.

      A defendant who has plead guilty or nolo contendere in exchange for deferred adjudication must comply with Rule 25.2(b)(3) of the appellate rules when he seeks to appeal a subsequent sentencing. See Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996) (applying former appellate rule 40(b)(1) now Rule 25.2(b)(3)). Rule 25.2(b)(3) provides in pertinent part that if a defendant seeks to appeal:

...from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice 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).

      Boutte plead guilty to the original charges, and the punishment he received did not exceed the punishment recommended by the State. After his adjudication of guilt, Boutte filed a general notice of appeal in both causes, neither of which recite that the appeal is for a jurisdictional defect; that the substance of the appeal was raised and ruled on by pretrial motion; or that the trial court granted him permission to appeal. Thus, Boutte’s notices of appeal do not comply with the requirements of Rule 25.2(b)(3).

      Because Boutte’s notices of appeal do not comply with these requirements, we have no jurisdiction over these appeals. Watson, at 714. See Tressler v. State, 986 S.W.2d 381, 382 (Tex. App.—Waco 1999, no pet.). This holding has been uniformly accepted by the courts that have addressed this issue. See Williams v. State, 962 S.W.2d 703, 704-706 (Tex. App.—Fort Worth 1998, no pet.); Okigbo v. State, 960 S.W.2d 923, 925 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd); Walker v. State, 970 S.W.2d 27, 29 (Tex. App.—Dallas 1997, no pet.); Carothers v. State, 928 S.W.2d 315, 317 (Tex. App.—Beaumont 1996, pet. ref'd). Accordingly, we dismiss Boutte’s appeals for want of jurisdiction.

TOM GRAY

                                                                   Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed

Opinion delivered and filed on February 9, 2000

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