Francisco Javier Olvera v. State of Texas ( 2001 )

NO. 07-00-0305-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 13, 2001

______________________________



FRANCISCO JAVIER OLVERA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 263^RD DISTRICT COURT OF HARRIS COUNTY;

NO. 824785; HONORABLE JIM WALLACE, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Francisco Javier Olvera appeals from his conviction and sentence for possession of marijuana, 5-50 pounds. We dismiss for lack of jurisdiction.

On April 6, 2000, pursuant to a plea bargain, appellant pled guilty to the charge of possession of marijuana, 5-50 pounds, in the 263rd District Court of Harris County, Texas. The trial court honored the plea bargain and sentenced appellant to incarceration in the Texas Department of Criminal Justice-Institutional Division, for five years.

Acting pro se, appellant filed a general notice of appeal. The trial court appointed appellate counsel, who has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed and that in the opinion of counsel, the record reflects no reversible error or grounds upon which an arguably meritorious appeal can be predicated. Counsel concludes that the appeal is without merit. Counsel has discussed why, under the controlling authorities, there is no reversible error in the trial court proceedings or judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant's right to review the record and file a response to counsel's motion and brief. The clerk of this court has likewise advised appellant of his right to file a response to counsel's motion and Anders brief. Appellant has not filed a response.

To perfect appeal from a judgment which was rendered on the defendant's plea of guilty or nolo contendere, and in which 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). Dismissal of an issue or the entire matter is appropriate unless both (1) the form of the notice of appeal is proper to perfect appeal as to the issue or matter, see Lyon v. State, 872 S.W.2d 732, 736-37 (Tex.Crim.App. 1994), and (2) the alleged jurisdiction is supported by the record. See Sherman v. State, 12 S.W.3d 489, 492 (Tex.App.-Dallas 1999, no pet.). In other words, if TRAP 25.2(b)(3) is applicable, then for an appellate court to have its jurisdiction invoked over a matter, compliance with TRAP 25.2(b)(3) is required as to both form and substance. Id.

Subsequent to the time appellant filed his general notice of appeal and appointed counsel filed his Anders brief, the Court of Criminal Appeals held that a plea-bargaining defendant such as appellant may not appeal the voluntariness of the plea. See Cooper v. State, 45 S.W.3d 77 (Tex.Crim.App. 2001). Because appellant, thus, cannot question the voluntariness of his plea based on his general notice of appeal, and because his notice of appeal does not state that his appeal (1) involves an overruled, written pre-trial motion, (2) is based on permission of the trial court or (3) is for a jurisdictional defect, appellant has not invoked our appellate jurisdiction and we must dismiss the appeal. See Sherman, 12 S.W.3d at 492.

Accordingly, the appeal is dismissed for lack of jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). Because we have no jurisdiction over the appeal except to dismiss it, see id., we cannot and do not consider appellate counsel's Motion to Withdraw.

Phil Johnson

Justice

Do not publish.

days in jail and then remain on community supervision for two years. Therefore, her community supervision period had not expired at the time the State filed its motion to revoke.

In her second issue, appellant claims the court's order requiring her to serve 30 days in jail was not authorized. In doing so, she argues that the statutory range of punishment for the conviction of a state jail felony is by confinement in a state jail for any term of not more than two years or less than 180 days. See Tex. Pen. Code Ann. § 12.35(a) (Vernon 1994). Thus, she posits, the trial court had no authority to order her to serve 30 days in the Bailey County Jail in addition to the two years confinement in a state jail facility. Therefore, she concludes, the sentence is void, because it exceeds the statutory authorization. In mounting her challenge, she argues that because of the unauthorized sentence, the original judgment was void, which would invalidate the order revoking the probation granted her in the original judgment.

In the recent case of Nix v. State, No. 793-00, slip op. at 5-7, 2001 WL 717453 (Tex.Crim.App. 2001), the court noted the existing rule that in cases that involved an appeal from a revocation of "regular probation," an exception existed to the general rule that defects in the original judgment not timely raised in a direct appeal from that judgment could not be raised in that appeal. That exception exists in cases in which the error asserted would render the original judgment void. Id. The court explicated that a criminal judgment was void when: 1) the document purporting to be a charging instrument (i.e., indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument), thus, the trial court has no jurisdiction over the defendant; 2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law; 3) the record reflects there is no evidence to support the conviction; or 4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Id. at p. 6 n.13-15. After listing these examples, the court commented that while it hesitated to call this list an exclusive one, "it is very nearly so."

This particular complaint arises from the trial court's original order placing appellant under community supervision. In order to timely perfect a regular appeal from that judgment, she must have given notice of appeal within 30 days from May 1, 1997, the date of imposition of her sentence. Tex. R. App. P. 26.2(1). She did not do so. That being true, unless her sentence was void, we are without jurisdiction in this attempt to consider appellant's second challenge.

In Coleman v. State, 955 S.W.2d 360 (Tex.App.--Amarillo 1997, no pet.), we were presented with an analogous question. In that case, the appellant also argued that his assessed sentence was void because it exceeded the allowable maximum. In that connection, we opined "an interpretation of the law applicable to punishment, even if erroneous, does not impact the court's jurisdiction to the extent it becomes a jurisdictional issue . . . ." Id. at 362-63. We continue to adhere to that reasoning. Parenthetically, as we did in Coleman, we note that the failure to properly perfect the appeal does not foreclose appellant's right to post-conviction relief if, indeed, the sentence assessed was not authorized under the statute.

Because we have no jurisdiction in this direct appeal to consider appellant's complaints, we must, and do hereby, dismiss this appeal for want of jurisdiction.

John T. Boyd

Chief Justice

Do not publish.