Ralph White, Jr. v. State ( 2000 )

Ralph White Jr. v. State of Texas

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IN THE

TENTH COURT OF APPEALS

No. 10-99-234-CR

     RALPH WHITE, JR.,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 00-00-26896-CR

                                                                                                                   

MEMORANDUM OPINION

                                                                                                                 

      Ralph White, Jr. pleaded guilty to possession of cocaine in the amount of four grams or more but less than 200 grams with intent to deliver said substance. See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon Supp. 2000). Pursuant to the State’s plea recommendation, the court sentenced White to forty years’ imprisonment.

      White advised this Court by letter of his desire to appeal the conviction. We treated White’s letter as a general notice of appeal and forwarded a copy to the trial court clerk. The clerk’s record reflects that White pleaded guilty pursuant to a plea bargain and that his sentence did not exceed the State’s recommendation. Accordingly, White can appeal only:

      •    jurisdictional issues;

 

      •    matters raised by written pre-trial motion; or

 

      •    issues on which the trial court has granted permission to appeal.

Tex. R. App. P. 25.2(b)(3). White filed no pre-trial motions. The trial court has expressly denied him permission to appeal. Thus, White can appeal only jurisdictional issues.

      Jurisdictional issues are those which touch upon “the power of the court over the ‘subject matter’ of the case, conveyed by statute or constitutional provision, coupled with ‘personal’ jurisdiction over the accused.” Flowers v. State, 935 S.W.2d 131, 134 n.4 (Tex. Crim. App. 1996) (quoting Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981)); accord Davis v. State, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997). White contends on appeal only that his prosecution in this case violates double jeopardy. The Court of Criminal Appeals has recently held that a double jeopardy claim does not implicate the trial court’s subject-matter jurisdiction or the court’s jurisdiction over the person of the defendant. Ex parte Birdwell, 7 S.W.3d 160, 162-63 (Tex. Crim. App. 1999). The Court stated that in cases involving a plea of double jeopardy:

the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is error which may be corrected by the usual modes of correcting such errors, but that the court had jurisdiction to decide upon the matter raised by the plea both as matter of law and of fact cannot be doubted.

Id. at 163 (quoting In re Bigelow, 113 U.S. 328, 330, 5 S. Ct. 542, 543-44, 28 L. Ed. 1005 (1885)).

      The record affirmatively demonstrates that the trial court had jurisdiction over White and his case. White filed no pre-trial motions. The trial court has expressly denied him permission to appeal. Accordingly, we do not have jurisdiction over this appeal. See Elizondo v. State, 979 S.W.2d 823, 824-25 & n.4 (Tex. App—Waco 1998, no pet.). Thus, we dismiss White’s appeal.

 

                                                                         PER CURIAM

Before Chief Justice Davis,

          Justice Vance, and

          Chief Justice McDonald (retired)

Appeal dismissed for want of jurisdiction

Opinion delivered and filed March 1, 2000

Do not publish

and conditions of Husfeld’s community supervision.  Husfeld now appeals.

          As the trial court correctly pointed out in its certificate of defendant’s right of appeal, an order modifying the terms and conditions of community supervision is not reviewable by direct appeal.  Basaldua v State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Rice v. State, No. 10-04-00086-CR, 2004 Tex. App. LEXIS 5664 (Tex. App—Waco June 23, 2004, no pet.) (not designated for publication).

          Accordingly, the appeal is dismissed.

 

                                                                   TOM GRAY

                                                                   Chief Justice

 

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal dismissed

Opinion delivered and filed March 23, 2005

Do not publish

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