Cody Montgomery Hefner v. State

NO. 12-10-00394-CR

IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

CODY MONTGOMERY HEFNER,                '                 APPEAL FROM THE 114TH

APPELLANT

V.                                                                         '                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        '                 SMITH COUNTY, TEXAS

MEMORANDUM OPINION OVERRULING REHEARING

PER CURIAM

     On November 24, 2010, we dismissed this appeal for want of jurisdiction based upon the trial court’s certification that Appellant waived his right to appeal.  See Hefner v. State, No. 12-10-00394-CR, 2010 WL 4813738, at *1 (Tex. App.–Tyler Nov. 24, 2010, no pet. h.).  Appellant has filed a motion for rehearing challenging the trial court’s jurisdiction.  He states in his motion that he pleaded guilty pursuant to a plea agreement and the trial court followed the plea agreement.

            In a plea bargain case, a defendant must have permission of the trial court to prosecute his appeal except on those matters that were raised by written motion filed before trial.  Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006); Tex. R. App. P. 25.2(a)(2).  A plea bargain case is a case in which a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant.  Tex. R. App. P. 25.2(a)(2). Appellant’s case, as he describes it in his motion for rehearing, falls within this definition.

            In a plea bargain case, “[j]urisdictional matters may be raised on appeal if they fit within the limited right of appeal granted by the legislature, or they may be litigated by writ of habeas corpus.”  Griffin v. State, 145 S.W.3d 645, 648–49 (Tex. Crim. App. 2004).  In other words, a defendant in a plea bargain case cannot raise a jurisdictional challenge on appeal absent a showing that he raised the issue in a written pretrial motion that was ruled upon by the trial court or obtained the trial court’s permission to appeal.  See id.  Appellant admits that he did not raise jurisdiction in the trial court, and he has not shown that he obtained the trial court’s permission to appeal.  Therefore, he cannot challenge the trial court’s jurisdiction on appeal.  Accordingly, we overrule Appellant’s motion for rehearing.

Opinion delivered January 12, 2011.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)