






Reyes Guadalupe Gonzales v. State















IN THE
TENTH COURT OF APPEALS
 

No. 10-01-387-CR

     PHILLIP LACKIE,
                                                                              Appellant
     v.

     THE STATE OF TEXAS,
                                                                              Appellee
 

From the 82nd District Court
Robertson County, Texas
Trial Court # 01-04-17,036-CR
                                                                                                                

MEMORANDUM OPINION
                                                                                                                

      A grand jury presented indictments against Phillip Lackie for indecency with a child and
aggravated sexual assault.  The district clerk docketed the indecency indictment under trial court
cause number 01-04-17,036-CR and the aggravated sexual assault charge under trial court cause
number 01-04-17,049-CR.  Lackie pleaded nolo contendere to the aggravated sexual assault charge
without the benefit of a plea recommendation.  The court assessed his punishment at ninety-nine
years.
      In connection with these plea proceedings, Lackie filed a motion in the indecency case
admitting his guilt and requesting that the court take the indecency charge into account when
assessing his punishment for aggravated sexual assault.  See Tex. Pen. Code Ann. § 12.45
(Vernon 1994).  The prosecuting attorney signed this motion indicating his consent.  Id. §
12.45(a).  The court signed an order granting Lackie’s request.
      Lackie’s counsel filed a notice of appeal from the aggravated assault conviction which we have
docketed under appellate cause number 10-01-419-CR.  Lackie filed a pro se notice of appeal in
the indecency case which we have docketed under cause number 10-01-387-CR.
      The trial court’s decision to grant Lackie’s section 12.45 motion bars any further prosecution
of Lackie for the indecency charge.  Id. § 12.45(c); Wilkins v. State, 574 S.W.2d 106, 108 (Tex.
Crim. App. [Panel Op.] 1978); Zapata v. State, 905 S.W.2d 15, 16 (Tex. App.—Corpus Christi
1995, no pet.).  However, the court’s order does not constitute a conviction.  Cf. Murray v. State,
840 S.W.2d 675, 679 (Tex. App.—Tyler 1992, no pet.) (offenses admitted and considered under
section 12.45 are admissible at punishment as part of defendant’s criminal record); see also Tex.
Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2002) (evidence of defendant’s
“prior criminal record” admissible at punishment, including unadjudicated offenses “shown
beyond a reasonable doubt”).
      Article V, section 6 of the Texas Constitution invests this Court with jurisdiction over “all
cases of which the District Courts or County Courts have original or appellate jurisdiction, under
such restrictions and regulations as may be prescribed by law.”  Tex. Const. art. V, § 6.  Article
44.02 of the Code of Criminal Procedure provides in pertinent part, “A defendant in any criminal
action has the right of appeal.”  Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979).  Texas
courts have consistently construed article 44.02 to allow an appeal only “from a ‘final judgment
[of conviction],’ though the statute does not contain this limitation on its face.”  Benford v. State,
994 S.W.2d 404, 408-09 (Tex. App.—Waco 1999, no pet.) (quoting State v. Sellers, 790 S.W.2d
316, 321 n.4 (Tex. Crim. App. 1990)).
      This Court has jurisdiction over other types of criminal appeals only when “expressly granted
by law.”  Benford, 994 S.W.2d at 409 (quoting Apolinar v. State, 820 S.W.2d 792, 794 (Tex.
Crim. App. 1991)).  No statute vests this Court with jurisdiction over an appeal from an order
issued under section 12.45 of the Penal Code.  Accordingly, we dismiss this appeal for want of
jurisdiction.

                                                                         TOM GRAY
                                                                         Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Appeal dismissed for want of jurisdiction
Opinion delivered and filed February 6, 2002
Publish
[CR25]
