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Dismissed, Order issued October 3>i, 1996



                                                                                  '1      '-*/ J
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                                                                              /    -:


                                          In The

                                (Hourt of Appeals
                      JTtftlf Itstrtrt of ©*xas at Dallas
                                                                                              i r
                                   No. 05-92-02080-CR



                           DURETTA DARTHARD, Appellant

                                            V.


                            THE STATE OF TEXAS, Appellee


                               OPINION AND ORDER



            Before Chief Justice Thomas and Justices Maloney and Hankinson

       Duretta Darthard appeals her conviction for forgery. As part of a plea bargain

agreement, appellant pleaded guilty and was placed on deferred adjudication probation for
three years and fined $100. Thirteen months later, the State filed a motion to adjudicate
guilt. Appellant pleaded true to the allegations in the motion, and the trial court revoked
appellant's probation and adjudicated her guilty. The trial court then placed appellant on
 ten years probation. In May 1992, the State filed a motion to revoke probation, and
 appellant entered a plea of true to the allegations. The trial court sentenced appellant to
 ten years in prison and fined her $100. Appellant filed notice of appeal.
      The State filed a motion to dismiss the appeal on the ground that his Court does not

have jurisdiction because appellant filed only a general notice of appeal. In her brief,

appellant concedes this Court has no jurisdiction pursuant to rule 40(b)(1) of the Texas

Rules of Appellate Procedure.

      Rule 40(b)(1) provides:

      [I]f the judgment was rendered upon [an appellant's] plea of guilty or nolo
      contendere pursuant to Article 1.15, Code of Criminal Procedure, and the
      punishment assessed does not exceed the punishment recommended by the
      prosecutor and agreed to by the defendant and his attorney, in order to
      prosecute an appeal for a nonjurisdictional defect or error that occurred prior
      to entry of the plea the notice shall state that the trial court granted
      permission to appeal or shall specify that those matters were raised by written
       motion and ruled on before trial.


Tex. R. App. P. 40(b)(1). A general notice of appeal does not confer jurisdiction upon this

Court to consider nonjurisdictional issues. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim.

App.), cert, denied, 114. S. Ct. 2684 (1994). Rule 40(b)(1) applies to cases in which

appellant is placed on deferred adjudication probation pursuant to a plea agreement and

the probation is subsequently revoked and appellant adjudicated guilty. Watson v. State, 924

S.W.2d 711, 714-15 (Tex. Crim. App. 1996). The fact that the term of confinement

imposed following adjudication of guilt was not recommended by the State does not amount

to a refusal of the trial court to implement the plea bargain agreement. Watson, 924 S.W.2d

at 714.


          In this case, appellant entered her original plea pursuant to a negotiated plea

bargain. The punishment assessed by the trial court did not exceed that agreed to by




                                            -2-
appellant and her attorney and recommended by the State. Further, appellant filed only a

general notice of appeal. According to appellant's brief filed by retained counsel, Ross

Teter, appellant was admonishedin writing and by the Court in substantial compliance with

article 26.13 of the code of criminal procedure. Additionally, the brief asserts that the

record does not reflect that the plea was involuntary. Appellant has brought no points of

error raising jurisdictional defects. Because appellant filed a general notice of appeal, this

Court does not have jurisdiction over this appeal.

       Accordingly, we DISMISS the appeal for lack of jurisdiction.



                                                                            '/lydL*rl~*T>*-f
                                                    DEBORAH G. HANKINSON
                                                    JUSTICE


Do Not Publish
Tex. R. App. P. 90




                                              -3-
                          NO. 05-92-02080-CR




DURETTA DARTHARD                               §     IN THE COURT OF APPEALS

VS.
                                               §      FOR THE FIFTH DISTRICT
                                                                                        FILED IN
THE STATE OF TEXAS                             §      OF TEXAS AT DALLAS            COURT OF APPEALS
                                                                                      SEP 191996
                                                                                   MARIA SANCHEZ, Clerk
                                  ON APPEAL FROM THE
                           363RD JUDICIAL DISTRICT COURT
                              OF DALLAS COUNTY, TEXAS
                                IN CAUSE NO. F89-97533-W




                           STATE'S MOTION TO IWSMTSS THE
                          APPFAT, PURSUANT TO RULE 40(b)(X)



TO THE HONORABLE JUDGES OF SAID COURT:
               COMES NOW the State of Texas, by and through the Criminal District Attorney
of Dallas County, Texas, and respectfully requests that this appeal be dismissed. In support of
this motion the State would show the Court the following:


                                                I.


               Appellant was convicted offorgery and sentenced to ten years' confinement and
assessed a $100 fine on June 5, 1992. (R.I:58). Notice of Appeal was filed July 1,1992.
 (R.I:64). It is ageneral Notice of Appeal in that it does not reflect that the trial court granted
 persmission to appeal and it does not reflect that the matters to be appealed were raised by
 written pretrial motion overruled by the trial court.
                                              n.


              The Transcript reflects that appellant originally pleaded guilty according to the

terms ofa plea bargain agreement with the State. (R.I:36). The State and appellant agreed that
appellant would plead guilty in exchange for a recommendation of three years' deferred
adjudication probation. The plea bargain agreement is signed by appellant and dated February
9, 1990. Appellant also signed the Court's Admonition of Statutory and Constitutional Rights
and Defendant's Acknowledgment. (R.I:37). The judgment, dated February 9, 1990, indicates
that appellant was placed on three years probation in accordance with the terms of the plea
bargain agreement. (R.I:38).
              The State filed a motion to proceed with adjudication of guilt on March 8. 1991.
(R.L44). Appellant pleaded true to the State's allegations on March 28, 1991. (R.L47). The
judgment, dated March 28, 1991, indicates that appellant was found guilty and received a ten-
year probated sentence, (R.I:49), and was ordered to serve 30 days' confinement in Dallas
County Jail as a condition of probation. (R.L53).
               On May 5, 1992, the State filed a motion to revoke probation. (R.I:62).
appellant pleaded true to the State's allegations on June 4,1992. (R.I:56). The judgment, dated
June 5, 1992, reflects that appellant was sentenced to ten years' confinement and assessed a fine
of $100. (R.L58).



                                               m.


               The Court ofCriminal Appeals inLyon v. State. 872 S.W.2d 732, 735-36 (Tex.
 Crim. App. 1994), s&LJkEM, 114 S. Ct. 2684, 129 L. Ed. 2d 816, and PaviS V, State, 870
SS^S..   :••£ r*&&r5j^^BW'^i^K^iSwf;^                         #*S«rr-. ».__ ...




         S.W.2d 43, 45-46 (Tex. Crim. App. 1994) held thata general notice of appeal in an appeal from

         a negotiated plea is not sufficient to confer jurisdiction on an appellate court. This holding
         applies to nonjurisdictional defects which occur both before and after the plea. Davis. 870
         S.W.2d at 45-46. This holding applies even to negotiated pleas in cases where the defendant

         entered the plea with the understanding that he would be able to appeal a pretrial motion; a
         general notice ofappeal insuch a case isinsufficient to confer jurisdiction on an appellate court.
         Davis. 870 S.W.2d at 46. Moreover, an appellate court may not permit a defendant to amend

         a notice of appeal out of time. Davis. 870 S.W.2d at 47. In WatSQn y, State, 924 S.W.2d 711
         (Tex. Crim. App. 1996), the Court of Criminal Appeals extended the reach ofLvon and Davis
         (and rule 40(b)(1)) to cases where the State and defendants agreed to deferred adjudication in
         a plea bargain.

                                        To comply with rule 40(b)(1), appellant's contention must either have been raised
         by a written pre-trial motion and the notice ofappeal must reflect that fact in writing (§ge Davis,
         870 S.W.2d at 45, 46-47), or appellant alternatively must have received the permission of the
         trial judge to appeal the sufficiency ofthe evidence underlying his guilty plea. TEX. R. APP.
         P. 40(b)(1). Ifsuch permission was received, that fact must be evident on the face ofhis notice
         ofappeal. TEX. R. APP. P. 40(b)(1). Appellant's notice ofappeal isgeneral because it lacks
         the necessary recitations, and this Court therefore lacks jurisdiction of appellant's claims. See
         TEX. R. APP. P. 40(b)(1); DasdS, 870 S.W.2d at 46-47; Penny Y. State, 880 S.W.2d 59, 61
         (Tex. App. - Dallas 1994, no pet.). Furthermore, appellant, in his brief, concedes that this
          Court lacks jurisdiction to consider this appeal. Brief for Appellant at 5. Appellant's appeal
          must be dismissed.
              WHEREFORE, PREMISES CONSIDERED, the State respectfully requests that

this appeal be dismissed for want of jurisdiction.



                                               Respectfully submitted,



                                               LORRAINE A. RAGGIO
                                               ASSISTANT DISTRICT ATTORNEY
                                               STATE BAR NO. 00792783
                                               FRANK CROWLEY COURTS BUILDING
                                               LOCK BOX 19
                                                DALLAS, TEXAS 75207-4399
                                                (214) 653-3661



                                CERTIFICATE OF SERVICE




               I hereby certify that a copy of the foregoing Motion has been served on Ross
Teter, Attorney for Appellant, at 311 N. Stemmons Freeway, Suite 100, Dallas, Texas, 75207-
4397, by depositing same in the United States mail on September 19, 1996.




                                                     pa$Y^u^(3_ @y4<<*
                                                LORRAINE A. RAGGIO




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