                                                                                                                        il4

Dismissed, Order issued October 30, 1996


                                                                                                    T,J^
                                                                                                     Cs        1

                                                                                                      c.

                                                         In The

                                       Court of Appeals                                                  I r
                              iTtftl^ Itstrtrt of Wexns at Ballas
                                                No. 05-92-02063-CR



                                           LEWIS BIVINS, Appellant

                                                            V.


                                      THE STATE OF TEXAS, Appellee


                                          OPINION AND ORDER



                Before Chief Justice Thomas and Justices Maloney and Hankinson

         Lewis Bivins appeals his conviction for unauthorized use of a motor vehicle. As part

of a plea bargain agreement, appellant pleaded nolo contendere and was placed on ten

years probation on December 20, 1990.1                           Subsequently, the State moved to revoke

appellant's probation. Again, as part of a plea bargain agreement, appellant pleaded true

to the allegations in the State's motion, and the trial court sentenced him to ten years in

prison on August 14, 1992. Appellant timely perfect his appeal.


        Specifically, the agreement provided that appellant would be sentenced to ten years in prison but would be allowed to
participate in the Special Alternative Incarceration Program. About three months after sentence was imposed, the trial court
ordered appellant placed on probation for ten years.
                                                                                   Mivo
       The State filed a motion to dismiss the appeal on the ground that this Court does not

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

by retained counsel Ross Teter, appellant concedes this Court has no jurisdiction pursuant

to rule 40(b)(1) of the Texas Rules of Appellate Procedure and asserts no points of error.

       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).

       In this case, appellant entered his plea of true to the State's motion to revoke

probation pursuant to a negotiated plea bargain. The punishment assessed by the trial court

did not exceed that agreed to by appellant and his attorney and recommended by the State.

Further, appellant filed only a general notice of appeal.

       According to appellant's brief, appellant was admonished in 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




                                                -2-
                                                                                    W/w
general notice of appeal, this Court does not have jurisdiction over this appeal.

       Accordingly, we GRANT the State's March 7,1995 motion to dismiss appealfor want

of jurisdiction.

       We DISMISS the appeal for want of jurisdiction.




                                                  LINDA THOMAS
                                                  CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 90




                                            -3-
              •&^«*B»m;»^>'i«^




                                      NO.   O5-92-02063-CR



LEWIS BIVINS                                     S        IN THE COURT OF APPEALS

VS.                                              S        FOR THE FIFTH DISTRICT

THE STATE OF TEXAS                               S        OF TEXAS AT DALLAS


                                                                           FILED IN
                                                                        COURT of ftp""";

                                      ON APPEAL FROM THE                 MJ\R - 7 1995
                                 265TH JUDICIAL DISTRICT COURT
                                    OF DALLAS COUNTY TEXAS              MELANiE Ktliutf
                                   IN CAUSE NO. F90-53996-PR              CLERK, >*--




      BTATE'S MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION
               FILED IN RESPONSE TO APPELLANT'S BRIEF



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 files this motion to

dismiss the appeal for want of jurisdiction.                      In support of this
motion, the State would show the Court the following:



                                                 I.


             Appellant was convicted of unauthorized use of a motor

vehicle     and      sentenced         to   10   years    confinement    in    the      Texas

Department of Criminal Justice, Institutional Division, pursuant to
the terms of a plea bargain agreement.                       The judgment was dated

December 20, 1990.                 (R.1-11-12).       On April 8, 1991, the sentence

was suspended and Appellant was placed on 10 years probation.
(R.I-13).         On August 14,             1992,     the court revoked Appellant's

probation and sentenced him to 10 years' confinement in the Texas
Department of Criminal Justice, Institutional Division, pursuant to
a plea bargain agreement.          (R.I-19, 21-22).



                                       II.

             The State is asking this Court to dismiss the appeal for

lack of jurisdiction.       This case involves a plea of nolo contendere

by Defendant in a trial before the court wherein the punishment
assessed by the court did not exceed the punishment recommended by

the prosecution and agreed to by Defendant and his attorney.              (R.I-
9, ll).1    TEX. R. APP. P. 40(b)(1) provides that in such a case, in
order to pursue an appeal, Defendant must state in his notice of

appeal that he had permission of the court to appeal or that he is
appealing those matters raised by written motion filed prior to
trial.     The notice of appeal filed by Defendant in this case does

not contain any of these required statements.             (R.1-26-27).



                                      III.


             The   State   calls   this   Court's   attention to the     recent

decisions by the Court of Criminal Appeals in Lvon v. State. 872
S.W.2d 732,736 (Tex. Crim. App. 19941 and Davis v. State. 870
S.W.2d 43,46 (Tex. Crim. App. 1994), wherein the Court held that a

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 736.    This holding



     'No citation has been made to the Statement of Facts due to its
unavailability.
                                                 •«'•«'." -."— SS&ii«»l!N«S«!*Mii^^




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 of appeal in such a case

is insufficient to confer jurisdiction on an appellate court.                         Id.

Moreover, an appellate court may not permit a defendant to amend a

notice of appeal out of time.   Id. at 737.



                                IV.


          The State respectfully urges this Court to apply the

rulings in Lyon and Davis to its own decision in the instant case.

Defendant's notice of appeal is deficient and cannot now be timely

amended to meet the requirements of Rule 40(b)(1).        In the absence

of an adequate notice of appeal, this Court is without jurisdiction

to entertain the appeal.



                                V.


          Appellant has filed a brief wherein he admits that his
notice of appeal does not comply with Rule 40(b)(1) and that Lyon

and Davis apply.   Appellant is therefore in agreement with the
State's position and, consequently, his appeal should be dismissed
for want of jurisdiction.



                                VI.


          WHEREFORE, PREMISES CONSIDERED, the State respectfully

requests this Court to dismiss Defendant's appeal for want of
           :-'3'S**M^?^*^^^£^^^




jurisdiction because Defendant has not properly                     perfected his
appeal in accordance with TEX. R. APP. P. 40(b)(1).




                                              Respectfully submitted,




                                        By:
                                              LISA L.   BRAXTON
                                              ASSISTANT DISTRICT^ATTpRNEY
                                              STATE BAR NO.    00787131
                                              FRANK CROWLEY COURTS BUILDING
                                              LOCK BOX 19
                                              DALLAS, TEXAS 75207-4399
                                              (214) 653-3624



                                  CERTIFICATE OF   SERVICE


          I hereby certify that a true copy of the foregoing motion
to dismiss has been served on Ross Teter, Attorney for Appellant,
311 N. Stemmons Freeway, Suite 100, Dallas, Texas 75207-4397, by
depositing same in the United States Mail, Postage Prepaid, on this
the _£J2r daY of March, 1995.


                                              ^S<-^<l^~^c^\.
                                              LISA) L. BRAXTON

lib
                                                                No Oral Argument Requested




                            IN THE
                 COURT OF APPEALS
             FIFTH DISTRICT OF TEXAS
                 AT DALLAS, TEXAS                          cou"1^* ™M«
                                                           FEB 2 21995
                                                           MELANIE KtLluM             1/
LEWIS HORACE BIVINS               §                         clerk
                                                                                             J
                                   §
VS.                                §                 NO. 05-92-02063-CR
                                   §
THE STATE OF TEXAS                 §



                            Appeal From
                265th Judicial District Court (Dallas)
                       Judge KEITH DEAN
                     Trial Cause No. F90-53996-R




          APPELLANTS BRIEF ON APPEAL




                                   Submitted by:


                                   ROSS TETER
                                   Texas Bar No. 19811000
                                   311 N. Stemmons Freeway, Suite 100
                                   Dallas, Texas 75207-4397
                                   Telephone: (214) 744-0400
                                   Fax: (214)748-7461

                                   Counsel for Appellant
                                   (On Appeal Only)
                                        LIST OF PARTIES



LEWIS HORACE BIVINS (Appellant)
D.O.B. 625310
TDCJ Beto I Unit
Tennessee Colony, TX 75880

JOHN VANCE, District Attorney
Frank Crowley Courts Building
133 N. Industrial Blvd.
Dallas, Texas 75207




                                       TABLE OF CONTENTS

List of Parties                                                                         2
Table of Authorities                                                                    2
No Request for Oral Argument                                                            4
Case in Brief                                                                           4
Indictment                                                                              4
No Pre-Trial Motion(s)                                                                  4
Plea Bargain                                                                            4
Arraignment & Admonishment                                                              5
State's Evidence                                                                        5
Judgment & Sentence                                                                     5
Motion to Revoke Probation                                                              5
Plea Bargain                                                                            5
Judgment Revoking Probation                                                             5
No Permission to Appeal                                                                 5
No Motion for New Trial                                                                 5
Notice of Appeal                                                                        5
Statement of Appellate Jurisdiction                                                     5

          THE COURT OF APPEALS DOES NOT HAVE JURISDICTION TO CONSIDER THIS APPEAL.
          APPELLANT WAS CONVICTED OF A FELONY OFFENSE AND PUNISHED IN ACCORDANCE
          WITH A PLEA BARGAIN AGREEMENT. THE NOTICE OF APPEAL DOES NOT STATE THAT
          APPELLANT IS APPEALING FROM AN ADVERSE RULING TO A PRE-TRIAL MOTION OR
          THAT THE TRIAL JUDGE GRANTED PERMISSION FOR AN APPEAL AS REQUIRED B Y R ULE
          40(b)(1), TEX. R. APP. P.


Prayer                                                                                  6
Certificate of Service                                                                  6




Appellant's Brief on Appeal, Page 2.
                                       TABLE OF AUTHORITIES

Curlin v. State, 881 SW2d 513                                                5
Davis v. State, 870 SW2d 43                                                  5
Duran v. State, 881SW2d 86                                                   5
Fowlerv. State, 874 SW2d 112                                                 5
Lyon v. State, 872 SW2d 732,             US   , 114 SCt 2684, 129 LE2d 816   5
Penny v. State, 880 SW2d 59                                                  5
Wolfe v. State, 878 SW2d 645                                                 5

Rule 40(b)(1), Texas Rules ofAppellate Procedure                             5




Appellant's Brief on Appeal, Page 3.
                         APPELLANTS BRIEF ON APPEAL


TO THE HONORABLE JUSTICES:

       LEWIS HORACE BIVINS, Appellant files and presents this brief on appeal.

       1.      No Request for Oral Argument

               Appellant's counsel does not request oral argument.

       2.      Case in Brief


               Offense                               Unauthorized Use of Vehicle
               Pre-Trial Motion(s)                   None
               Plea to Indictment                    Guilty (Plea Bargain)
               Judgment                              Guilty as charged
               Sentence                              10 Years Probation & $300 Fine
               Motion to Revoke Probation ....       Plea of True (Plea Bargain)
               Date of Sentence                      August 14,1992
               Motion for New Trial                  None
               Permission to Appeal                  None
               Notice of Appeal                      August 31, 1992

       3.      Indictment


               Appellant did not challenge the sufficiency of the indictment and it is not fundamentally
defective.


       4.      No Pre-Trial Motion(s)

               Appellant did not file and obtain adverse an adverse ruling to any pre-trial motion.

       5.      Plea Bargain

           Appellant entered into a plea bargain agreement with the State which provided that in
exchange for Appellant's plea of guilty the State would recommend the probatedsentenceand fine
that was assessed by the Court. The Court accepted and approved the plea bargain agreement and
assessed the punishment agreed upon by Appellant, Appellant's counsel and counsel for the State.

       6.      Arraignment & Admonishment

            Appellant waived arraignment and entered a plea of guilty. Appellant was admonished
in writing and by theCourt in substantial compliance with Article 26.13, CCP.



Appellant's Brief on Appeal, Page 4.
       7.      State's Evidence


               The evidence presented by the State was sufficientto establish guilt as required by Article
1.15, C.C.P.

         8.    Judgment & Sentence

           The judgment and sentence convict Appellant of the offensecharged in the indictment and
impose a sentence in accordance with the plea bargain agreement.

         9.    Motion to Revoke Probation


               The State filed a motion to revoke probation alleging that Appellant committed a new
felony offense while on probation (T 16).

       10.     Plea of True (Plea Bargain)

           Appellant entered a plea of true to the State's motion to revoke probation pursuant to a
plea bargain agreement.

       11.     Judgment Revoking Probation

          The trial judge accepted Appellant's plea of true, revoked Appellant's probation and
sentenced Appellant to a term of imprisonment in accordance with the plea bargain agreement.

       12.     No Motion for New Trial


               Appellant did not file a motion for new trial.

       13.     No Permission to Appeal

               The record does not reflect that the trialjudge granted permission for Appellant to appeal
the conviction to the Court of Appeals.

       14.     Notice of Appeal

           Appellant filed a timely general notice of appeal that does not state that Appellant is
appealing from an adverse ruling to a pre-trial motion or thatthe trial court granted permission for
an appeal to the Court of Appeals.

        15. Statement as to Appellate Jurisdiction

               THE COURT OF APPEALS HAS NO JURISDICTION TO CONSIDER THIS
               APPEAL.


               Appellant was convicted pursuant to a pleabargain agreement and filed a general notice

Appellant's Brief on Appeal, Page 5.
of appeal which does not state that the trial court granted permission to appeal or that Appellant is
appealingfrom adverse rulings to pre-trial motions as required by Rule 40(b)(1), Tex. R. App. P. The
record does not reflect that Appellant's plea was involuntary or that the trial court abused its
discretion in denying permission to appeal.

               The Court of Criminal Appeals determined that compliance with Rule 40(b)(1) is
jurisdictional and that the failure to comply with that rule requires the Court of Appeals to dismiss
the Appeal. See Lyon v. State, 872 SW2d 732 (Tex.Crim. App. 1994), cert, denied,            US       ,
114 SCt 2684,129 LE2d 816, 62 USLW 3825 (June 13,1994) (No. 93-8795); Davis v. State, 870
SW2d43 (Tex.Crim.App. 1994); Fowler v. State, 874 SW2d 112 (Tex.App. - Austin 1994); Wolfe
v. State, 878 SW2d 645 (Tex.App. - Dallas 1994, no pet.); Penny v. State, 880 SW2d 59 (Tex. App.
- Dallas, 1994, no pet.) (en banc); Duron v. State, 881 SW2d 86 (Tex.App. - Dallas, 1994) and
Curlin v. State, 881 SW2d 513 (Tex.App. - Dallas, no pet.).

                                            PRAYER

           Wherefore, Appellant prays that the Court of Appeals will review the record of trial and
grant any relief to which Appellant may be entitled.


                                                   Respectfully submitted,




                                                   ROSS TET
                                                   Counselfor Appellant




                                       Certificate of Service

      The undersigned counselfor Appellant hereby certifies to the Court of Appeals that a true and
correct copy of the foregoing Brief on Appeal was served by hand delivery to John Vance, counsel
for the State of Texas on this date.




FEB 2 3 1995
Date                                               ROSS TETER
                                                   Counsel for Appellant




Appellant's Brief on Appeal, Page6.
