Robert M. Kelley, Jr. v. State ( 1999 )

Hector Medina v. The State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-99-108-CR

&

No. 10-99-113-CR

     ROBERT MARTIN KELLEY, JR.,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court Nos. 98-702-C & 98-703-C

MEMORANDUM OPINION

      Robert Martin Kelley, Jr. pleaded guilty to one count of attempted indecency with a child and six counts of injury to a child. See Tex. Pen. Code Ann. §§ 15.01, 21.11(a)(1), 22.04(a)(3) (Vernon 1994). Pursuant to a plea agreement, the court sentenced Kelley to seven years’ imprisonment on each count after denying his motion to withdraw his guilty plea in each case. Kelley attempts to appeal the voluntariness of his guilty pleas.  

      Appellate rule 25.2(b)(3) provides that in cases where a defendant has pleaded guilty or nolo contendere and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the defendant’s 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).  

      To properly invoke the jurisdiction of this Court over an appeal from a negotiated guilty plea, an appellant must comply with rule 25.2(b)(3). Tex. R. App. P. 25.2(b)(3). This Court and two others have required compliance with this rule even when challenging the voluntariness of the guilty plea. McGinty v. State, No. 01-98-113-CR, slip op. at 5, 1998 WL 918472, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 1998, no pet. h.); Elizondo v. State, 979 S.W.2d 823, 824 (Tex. App—Waco 1998, no pet.); Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex. App.—Fort Worth 1998, no pet.). At least four other appellate courts have decided to the contrary. Hernandez v. State, 986 S.W.2d 817, 820 (Tex. App.—Austin 1999, no pet. h.); Johnson v. State, 978 S.W.2d 744, 746 (Tex. App.—Eastland 1998, no pet.); Rigsby v. State, 976 S.W.2d 368, 369 n. 1 (Tex. App.—Beaumont 1998, no pet.); Session v. State, 978 S.W.2d 289, 291-92 (Tex. App.—Texarkana 1998, no pet.).  

      Kelley’s notice of appeal does not comply with rule 25.2(b)(3). The trial court expressly denied his motion for permission to appeal the voluntariness of his pleas. Accordingly, we do not have jurisdiction. Elizondo, 979 S.W.2d at 824-25 & n.4. Thus, we dismiss Kelley’s appeal.

                                                                         PER CURIAM

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Appeal dismissed

Opinion delivered and filed June 30, 1999

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