Howard, Patrick Deon v. State

Affirmed and Opinion Filed July 2, 1998
In The
(Hour! of Appeals
Jtfty Bxstrxci of Okxas at lallas
No. 05-96-01989-CR
PATRICK DEON HOWARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court Number Four
of Dallas County, Texas
Trial Court Cause No. F96-17436-MK
OPINION PER CURIAM
Before Justices Kinkeade, Whittington, and James
Patrick Deon Howard was charged by indictment with the attempted capital murder
of Aaron E. Barnes, a Cedar Hill police officer. Appellant entered a plea of guilty to the
charged offense in exchange for a recommendation by the prosecutor that appellant be
sentenced to twenty-five years' imprisonment and a $500.00 fine and that his sentence run
concurrently with his sentence in another case. The trial judge accepted appellant's plea of
guilty and followed the plea agreement. The judgment was entered on November 14, 1996,
^•dUI L 0 6 m$
and contains a deadly weapon finding.
Appellant's attorney filed a brief in which he concludes that the appeal is wholly
frivolous and without merit. The brief meets the requirements ofAnders v. California, 386
U.S. 738 (1967). The brief presents a professional evaluation of the record showing why,
in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807
(Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant.
We advised appellant that he has a right to file a pro se response, but appellant did not file
a pro se response.
The State maintains that this Court lacks jurisdiction to consider this appeal under
rule 40(b)(1) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 40(b)(1) (former
rules).1 Rule 40(b)(1) requires that a defendant, appealing from a plea-bargained
conviction, file a notice of appeal stating that the trial court granted permission to appeal
or that the appellant raised the matters appealed by written motion, which was ruled on by
the trial court before trial. If appellant's notice of appeal does not meet the requirements
of rule 40(b)(1), then it is a general notice of appeal. A general notice of appeal does not
confer jurisdiction on a court of appeals to consider nonjurisdictional defects or errors
occurring before or after the entry of a negotiated plea. Lyon v. State, 872 S.W.2d 732, 736
1 Effective September 1,1997, when adefendant enters his plea of guilty or nolo contendere under article 1.15 ofthe Texas
Code of Criminal Procedure and the punishment assessed by the trial courtdoes not exceed the punishment recommended by the
prosecutor and agreed to by the defendant, the notice of appeal must specify that: (A) the appeal is for a jurisdictional defect;
B) the substance of the appeal was raised by written motion and ruled on beforetrial; or C) the trial court granted permission
to appeal. Tex. R. App. P. 25.2(b)(3). We apply therevised rules to allpending proceedings unless ourapplying the revised rules
in a particular proceeding would not be feasible or would work injustice, in which case we may apply the former rules. Here,
appellant filed hisnotice of appeal before the effective date of the new rules of appellate procedure. Because it would notto be
feasible to require appellant to comply with the new rule, we apply former rule 40(b)(1).
-2-
(Tex. Crim. App.), cert, denied, 114 S. Ct. 2684 (1994); Davis v. State, 870 S.W.2d 43, 46
(Tex. Crim. App. 1994).
In the this case, appellant filed an amended request for permission to appeal on
December 9, 1996, and the request contains on order signed by the trial court granting
appellant permission to appeal. Although appellant subsequently filed two timely notices
of appeal, neither notice of appeal states that appellant was given permission to appeal.
Nevertheless, because the order granting permission to appeal is contained in the transcript,
appellant's notices of appeal substantially comply with rule 40(b)(1), and this Court has
jurisdiction over this case. See Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992);
see also Davis, 870 S.W.2d at 47.
We have reviewed the record and counsel's brief. We agree that the appeal is
frivolous and without merit. We find nothing in the record that might arguably support the
appeal.
We affirm the trial court's judgment.
PER CURIAM
Do Not Publish
Tex. R. App. P. 47
961989F.U05
-3-
(Eaurt of Appeals
JTiftly jBtstrtrt of Qkxas at Sallas
JUDGMENT
PATRICK DEON HOWARD, Appellant Appeal from the Criminal District Court
Number Four of Dallas County, Texas.
No. 05-96-01989-CR (Tr.Ct.No. F96-17436-MK).
Opinion delivered per curiam by Justices
THE STATE OF TEXAS, Appellee Kinkeade, Whittington, and James.
Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered July 2, 1998.
IK WHITTINGTO
JUSTICE
UL 0 6 J998