
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-00-397 CR

____________________


DONALD BARNES, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 252nd District Court
Jefferson County, Texas

Trial Cause No. 78592




OPINION
 Donald Barnes pleaded guilty to evading detention, and also entered a plea of "true"
to two prior felony convictions.  See Tex. Pen. Code Ann. § 38.04 (Vernon Supp. 2001). 
Barnes's indictment did not allege whether the two prior convictions were sequential but
rather stated that, prior to the commission of the primary offense, Barnes was convicted
for one previous felony on January 9, 1992, and convicted for the second on May 4, 1992. 
The indictment did not provide the dates that the enhancement offenses were committed.
	At the time of Barnes's plea, the trial court questioned whether the prior offenses
were required to be sequential, but ultimately accepted Barnes's pleas.  At the plea
hearing, Barnes was admonished that the evading detention offense was a second degree
felony, with a possible punishment range of two to twenty years and a possible fine of up
to $10,000.  Barnes and the State had agreed to a punishment recommendation of five
years confinement in the Institutional Division of the Texas Department of Criminal
Justice.  The record reflects the trial court followed the punishment recommendation and
assessed the five year punishment.  The record, however, contains neither a motion for
new trial, nor a request to the trial court for permission to appeal.
	The general notice of appeal filed by Barnes does not comply with Tex. R. App. P.
25.2(b)(3), as it must in order for Barnes to pursue his appeal from a plea-bargained
judgment.  See Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001).  Therefore,
pursuant to Rule 25.2(b)(3), this Court lacks jurisdiction to consider any matters raised by
Barnes in his direct appeal.  Barnes's appeal is dismissed for lack of jurisdiction by this
Court.  
	APPEAL DISMISSED.



						_________________________________
							RONALD L. WALKER
								Chief Justice

Submitted on September 27, 2001
Opinion Delivered October 24, 2001
Publish 

Before Walker, C.J., Burgess and Gaultney, JJ.


DISSENTING OPINION

	I respectfully dissent.  I first note that the State agrees Barnes should receive a new
trial, and neither party questions our jurisdiction.  Nevertheless, I do not quarrel with the
majority reviewing the question of this court's jurisdiction.  However, I disagree with their
determination in part.
	Because Barnes appeals from a judgment rendered on a plea of guilty pursuant to
a plea bargain agreement, and the punishment assessed did not exceed the punishment
recommended by the prosecutor and agreed to by the defendant, we must consider whether
Barnes's notice of appeal is sufficient to confer jurisdiction on this Court.  Here, Barnes
filed only a general notice of appeal.  He did not comply with the provisions of Rule
25.2(b)(3), which requires a notice of appeal to state expressly that (1) the appeal is for a
jurisdictional defect, (2) the substance of the appeal was raised in writing and ruled on
before trial, or (3) the trial court granted permission to appeal.  See Tex. R. App. P.
25.2(b)(3).  The Texas Court of Criminal Appeals recently held that the court of appeals
lacks jurisdiction to consider an appeal, even for voluntariness issues, where the appellant
has failed to comply with the notice requirements of Rule 25.2(b) after having pleaded
guilty in a plea-bargained, felony case.  See Cooper v. State, 45 S.W.3d 77, 81 (Tex.
Crim. App. 2001).  The Cooper Court also notes that meritorious claims of involuntary
pleas may be raised by other means, such as a motion for new trial and habeas corpus.  Id.
at 82.  Accordingly, I agree with the majority that this Court does not have jurisdiction to
address Barnes's claims raised in issues one and two, i.e., that he was improperly
admonished regarding the applicable punishment range and that his plea was involuntary.
	However, the claims he makes in issues three and four are another matter. In those
two issues Barnes contends he was sentenced to a term of imprisonment not authorized by
law and his sentence is void as a matter of law.  In Vidaurri v. State, 49 S.W.3d 880 (Tex.
Crim. App. 2001), a case decided even more recently than Cooper, the Texas Court of
Criminal Appeals found the court of appeals  erred in concluding that it lacked jurisdiction
to consider appellant's claim because of the prohibitions of Rule 25.2(b)(3).  Vidaurri, 49
S.W.3d at 885.  Because the Vidaurri appellant's claim that he was deprived of a separate
punishment hearing did not challenge his conviction, but rather challenged "the process
by which he was sentenced, an issue 'unrelated to [his] conviction,'" the court of appeals
had jurisdiction to consider that matter, as the limitations of Rule 25.2(b)(3) do not apply
in such cases.  Id. at 885 (citing Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App.
1998)).  And more recently still, in Kirtley v. State, No. 1193-00, 2001 WL 1043250
(Tex. Crim. App. Sept. 12, 2001), the Texas Court of Criminal Appeals determined that
"[a] claim of ineffective assistance of counsel at the punishment hearing after adjudication
of guilt is 'unrelated to' a claim regarding the propriety of the conviction.  There is
nothing to prohibit appellant from claiming ineffective assistance of counsel during the
punishment hearing on appeal. . . .  The Court of Appeals erred in holding otherwise." 
Kirtley, 2001 WL 1043250 at * 3 (quoting Vidaurri, 49 S.W.3d at 885)(emphasis in
original)).  In issues three and four, Barnes challenges not the "propriety of his
conviction" but rather the "process by which he was sentenced," i.e., that the trial court
improperly sentenced him to a punishment exceeding that authorized by law.  I would find
we have jurisdiction to consider issues three and four.
	Barnes argues because he was sentenced to an unauthorized  term of imprisonment,
his sentence is void.  Barnes was charged with a state jail felony -  evading detention - 
an offense of which he had allegedly been convicted previously and for which the
maximum punishment is two years confinement in a state jail facility, absent enhancement
offenses, together with a fine not exceeding $10,000.  See Tex. Pen. Code Ann. § 38.04
(a), (b)(2) (Vernon Supp. 2001); Tex. Pen. Code Ann. § 12.35 (Vernon 1994).  The State
acknowledges "there was a failure of proof due to an error in the language of the
indictment as to the previous offenses being sequential."  Barnes contends the enhancement
offenses are "of no consequence."  I agree.  For Barnes to receive a sentence for a
second-degree felony, it must be shown he had previously been finally convicted of two
felonies, and they were sequential.  See Gowan v. State 18 S.W.3d 305, 308 (Tex. App.--Beaumont 2000, pet. ref'd); Tex. Pen. Code Ann. § 12.42(a)(2) (Vernon Supp. 2001). 
However, Barnes received a five year sentence, in excess of the two year statutory
maximum punishment.  The sequential nature of the enhancement allegations was not
shown.
	Generally, when a punishment is not authorized by law, the sentence imposing that
punishment is void.  See Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim. App. 1991). 
A punishment unauthorized by law refers to punishments assessed that, on their face, are
not within the realm of punishments applicable to the particular offense.  See Speth v.
State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999).  Such is the sentence Barnes received. 
    	I would sustain issues three and four, reverse the judgment and sentence and remand
the cause to the trial court for a new punishment hearing.  See Young v. State, 922 S.W.2d
676, 678 (Tex. App.--Beaumont 1996, pet. ref'd); Tex. Code Crim. Proc. Ann. art.
44.29(b) (Vernon Supp. 2001).  

                                                               ________________________________
                                                                           DON BURGESS
                                                                               Justice


Dissent Delivered  
October 24, 2001
Publish  

