Fontenot v. StateFontenot v. State
- Reporters:
- , ,
- Before:
- Cayce
OPINION
CAYCE, Chief Justice.Kevin Lane Fontenot appeals his conviction for assault. Fontenot pled nolo conten-dere pursuant to a plea bargain agreement. Following the plea, the trial court assessed punishment of 90 days in the county jañ plus a fine of $100, probated for 12 months, in accordance with the State’s recommendation. Fontenot then retained counsel and filed a motion for new trial. After a hearing on the motion in which evidence was heard, the motion was overruled by operation of law. Fontenot contends that the trial court erred in overruling the motion for new trial for two reasons: 1) he allegedly was not orally admonished as to his right to counsel prior to signing a written waiver of counsel, and 2) he allegedly entered his plea involuntarily because he was not orally admonished that community service was part of his plea bargain agreement and he was given a written admonishment that he could withdraw his plea if the plea bargain agreement was not foñowed by the court. We dismiss the appeal for lack of jurisdiction.
BACKGROUND
On February 27, 1995, Fontenot appeared at his arraignment setting without counsel, and after meeting with counsel for the State, signed the following written waiver regarding his right to counsel:
WAIVERS
I. COUNSEL
I have been advised the 27th day of February, of 1995, by the Judge of County Court at Law Number One of my constitutional and statutory riyht to representation by counsel in the trial of the charye pending against me and of the dangers and disadvantages of self-representation. I have been further advised that if I am unable to afford counsel, an attorney will be appointed for me free of charge. I further understand that should I choose to represent myself, that I will be held to the same standards as an attorney, (i.e., I understand the court will not give me preferential treatment with regards to the rules and complexities of the law simply because I represent myself.)
I further state that I fully understand the charges filed against me. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, and understanding the dangers and disadvantages of self-representation, I hereby waive the right to counsel and demand that I be allowed to proceed with my case without an attorney.
X /s/ Kevin L. Fontenot
Defendant
Fontenot also signed the foHowing written admonishment regarding his plea bargain:
ADMONISHMENTS
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II. PLEA BARGAIN
If you are convicted of the offense with which you are charged, the Court is not obligated to follow any plea bargain agreement. However, should the Court reject the agreement, you will be permitted to withdraw your plea.
In return for your plea of No Contest, the prosecutor will recommend that you be punished by 90 days confinement in the Denton County Jañ and a fine of $100-, The prosecutor will also recommend that the jañ sentence be suspended and the defendant be placed on community supervision for a period of 12 mos. Additionally you whl have to pay court costs and restitution (if applicable), and attorney’s fees for your lawyer if he is court appointed. If you are placed on community supervision there wfll also be community supervision fees as determined by the Court. The Court may require jañ time as a condition of community supervision.
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ATTEST:
(Pro se) X Isl Kevin L. Fontenot
Attorney for Defendant Defendant
Isl Jamie D. Beck
Attorney for the State
Both the written waiver and the written admonishment were signed and approved by the trial judge. 1
According to the State’s uncontroverted testimony at the hearing on Fontenot’s motion for new trial, the judge orally admonished Fontenot in open court about his right to counsel and the terms and conditions of community supervision prior to accepting his plea. However, no record was made of the plea bargain hearing. Fontenot admits that he knew he had a right to retain counsel when he made his plea and that he signed the written waiver and admonishment, but he contends he does not “recall” anything the judge told him regarding his right to counsel or community supervision.
In this appeal, Fontenot asserts two points of error. First, Fontenot contends that the trial court erred in failing to grant his motion for new trial because there is no record of a “colloquy” between him and the trial judge showing that the judge examined Fontenot to assure that he was aware of his right to retain an attorney prior to waiving that right. Second, Fontenot complains that his plea of nolo contendere was involuntary because he does not recall the judge orally advising him that he would be placed on community supervision, and because he was admonished in writing that if the court should reject the plea bargain agreement, he would be permitted to withdraw his plea of nolo contendere. 2
ADEQUACY OF THE NOTICE OF APPEAL
Fontenot’s notice of appeal is a general notice that simply states that he appeals his conviction.
3
Recently, our court of criminal appeals has held that
In three recent cases, this court has held that a defendant’s failure to comply with
HISTORICAL BACKGROUND OF RULE 10(b)(1)
The right to appeal a criminal conviction is a substantive right solely within the province of the legislature. Lyon, 872 S.W.2d at 734; see Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992). Before 1977, a defendant in a criminal action had a general right to appeal anything. Lyon, 872 S.W.2d at 734. However, as a matter of decisional law the court of criminal appeals held a guilty plea waived all nonjurisdictional defects in the trial proceedings; a rule commonly known as the Helms rule. See Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972); see also Morris v. State, 749 S.W.2d 772, 779 (Tex.Crim.App.1986) (Clinton, J., dissenting). The Helms rule, however, discouraged guilty pleas and caused a defendant who wanted to preserve his appellate issues to force the State to a full trial on the merits. Lyon, 872 S.W.2d at 734; Morris, 749 S.W.2d at 779.
In an effort to remedy this situation, the legislature added a proviso to article 44.02 of the Texas Code of Criminal Procedure to allow the right to appeal nonjurisdictional error occurring prior to a plea of guilty or nolo contendere where 1) there is a negotiated recommendation as to punishment, and 2) the punishment actually assessed does not exceed the recommendation. Tex.Code Crim.PROcAnn. art. 44.02 (Vernon 1979); see Larson v. State, 759 S.W.2d 457, 459 (Tex.App.—Houston [14th Dist.] 1988, pet. ref‘d), cert. denied, 490 U.S. 1008, 109 S.Ct. 1646, 104 L.Ed.2d 161 (1989). This proviso was “a limited abrogation of the Helms rule; it allowed some appellate issues to be addressed on their merits in negotiated plea situations where the Helms rule otherwise applied in order ‘to conserve judicial resources by encouraging guilty pleas,’’ and to prevent ‘windy ’ appeals.” Lyon, 872 S.W.2d at 735 (emphasis supplied); see Morris, 749 S.W.2d at 779 n. 12; Morgan v. State, 688 S.W.2d 504, 507, 513-14 (Tex.Crim.App.1985) (Onion, J., dissenting). 4 The court of criminal appeals later decided a defendant’s failure to comply with the proviso to article 44.02 was jurisdictional, and a defendant had to obtain the trial court’s permission to appeal a nonju-risdictional defect occurring after entry of the plea. Lyon, 872 S.W.2d at 735; see Morris, 749 S.W.2d at 77A-75; see also Morgan, 688 S.W.2d at 515 (Onion, J. dissenting) (“[i]f a defendant falls within the [proviso to article 44.02], he has no right of appeal at all without the permission of the trial court save and except the appeal from rulings on certain pre-trial matters”).
In 1986, the proviso of article 44.02 was carried forward in the notice of appeal provisions of
(1) Appeal is perfected in a criminal case by giving timely notice of appeal.... Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendere . . . 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 nonjurisdic-tional 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.
Then in early 1994, the court of criminal appeals handed down
Davis
and
Lyon.
In
Davis,
the court held that in a negotiated plea situation, a general notice of appeal does not confer jurisdiction on a court of appeals to review a sufficiency of evidence claim (a nonjurisdictional defect occurring after entry of the plea) or the trial court’s ruling on a pretrial suppression motion (a nonjurisdie-tional error occurring prior to entry of the plea).
Davis,
870 S.W.2d at 46. In
Lyon,
decided the same day as
Davis,
the court of criminal appeals granted review on “whether the Court of Appeals erred (1) in holding it had jurisdiction to review only jurisdictional issues, (2) in failing to address appellant’s ineffective assistance of counsel claim, (3) in failing to address appellant’s sufficiency claim, and (4) in holding the trial judge’s relationship to the victim did not disqualify him from presiding over appellant’s prosecution.”
Lyon,
872 S.W.2d at 734. The court, citing
Davis
and
Moms
held that
“[a] defendant’s ‘general’ notice of appeal confers no jurisdiction on a Court of Appeals to address nonjurisdictional defects or errors that occur before or after entry of the plea; a defendant’s notice of appeal has to comply with the applicable provisions of the ‘but’ clause of
JURISDICTION OF TRIAL COURT TO ACT
Based on the foregoing discussion, our determination of whether Fontenot’s general notice of appeal invokes our jurisdiction under
Trial court jurisdiction is comprised of the power of the court over the subject matter of the case, conveyed by statute or constitutional provision, coupled with personal jurisdiction over the accused. See generally Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App.1981); Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App. [Panel Op.] 1980) (orig. proceeding). The attachment of jurisdiction in the trial court conveys upon that court the power to determine all essential questions “and to do any and all things with reference thereto authorized by the Constitution and statutes, or permitted district courts under established principles of law.” Garcia, 596 S.W.2d at 527-28 (citing Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1069 (1926)). In other words, once a court acquires jurisdiction of a case, that jurisdiction embraces everything in the case and every question arising which can be determined in the case, until it reaches its termination and the jurisdiction is thereby exhausted. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 645 (1933); see Garcia, 596 S.W.2d at 528.
Further encompassed by jurisdiction is the court’s authority to decide issues of law and fact, and to determine those issues erroneously:
Jurisdiction . . . includes the power to determine either rightfully or wrongfully. It can make no difference how erroneous the decision may be_ “[Jjurisdiction” . . . [m]oreover . . . includes the power to decide as to the law of the case as well as the effect of the facts in issue.
Corbin, 62 S.W.2d at 644, 645 (citations omitted) (emphasis deleted). Therefore, if the court has jurisdiction of the parties and subject matter, its actions are not void no matter how erroneous they may be. On the other hand, judicial action without jurisdiction is void; where the court is without jurisdiction, it has no authority to do anything other than dismiss the case. Garcia, 596 S.W.2d at 528.
*191 RIGHT TO COUNSEL
There can be no question under the foregoing principles that the right to counsel is not a jurisdictional issue; it goes neither to the trial court’s jurisdiction over the defendant’s person nor to the trial court’s jurisdiction over the subject matter. Nor does the “but” clause of
VOLUNTARINESS OF NEGOTIATED PLEA
Fontenot’s second point of error, which raises a complaint that his negotiated plea of nolo contendere was involuntary, is likewise outside the scope of our jurisdiction. A challenge to the voluntariness of a negotiated plea is clearly
non
jurisdictional, and at least two of our sister courts have either expressly or impliedly recognized that it is not an exception to the “but” clause of
This holding is consistent with our treatment of complaints challenging the voluntariness of a negotiated plea in recent decisions in which the issue of jurisdiction has been raised. In Torrez, the appellant raised three complaints: that he received ineffective assistance of counsel, that his plea was involuntary, and that the plea bargain’s terms were manifestly unjust. Upon examining the appellant’s amended notice of appeal, which stated that the trial court gave its permission to appeal “these causes,” we noted that the record showed that the appellant had only argued the involuntariness of his plea to the trial court in his motion for new trial and in the hearing on the motion. We then made the following observation:
After the trial court found that Torrez made his plea voluntarily, it said, “Now, the Court will give its consent for you to appeal this case to the Second Court of Appeals_” Thus, the trial court’s permission to appeal could only have concerned the argument about the involuntariness of the plea. The trial court did not give permission for Torrez to appeal on the basis of ineffective assistance of counsel or the manifest unjustness of the plea bargain’s terms.
Torrez,
925 S.W.2d at 362. Based on this finding, we concluded that our jurisdiction had been invoked to review the appellant’s claims that his plea of guilty was made involuntarily, but we dismissed for lack of jurisdiction the two complaints that had not been preserved for appellate review pursuant to
We also find support for today’s holding in a recent decision of the court of criminal appeals, Watson v. State, 924 S.W.2d 711 (Tex.Crim.App.1996). In Watson, the appellant pled guilty to an indictment charging her *192 with forgery in exchange for deferred adjudication. Within a year, the appellant violated the conditions of her probation, and the prosecutor filed a motion with the court to proceed with an adjudication of guilt. Based on appellant’s plea of true to the allegations, the trial judge then proceeded to adjudicate her guilty of the original forgery charge and sentenced her to confinement in the penitentiary for ten years. Id. at 712.
On appeal to the El Paso Court of Appeals, the appellant contended that the trial court violated her right to due process by prejudging her sentence.
See
The court of criminal appeals granted the State’s petition for discretionary review to consider whether the court of appeals had jurisdiction to review the constitutional due process complaint under a general notice of appeal in a deferred adjudication ease. The court held that the “but” clause of
By providing that an order of deferred adjudication may henceforth be regarded as punishment for purposes of plea negotiations and by authorizing immediate appeal from deferred adjudication orders [under article 42.12], the legislature opted to make the consequences of plea bargains for deferred adjudication equal to those involving other punishment recommendations. Attorneys for the defendant and for the State may now bargain for deferred adjudication, just as for any other disposition, confident on the one hand that an appeal may be taken immediately from any ensuing order or judgment in the case, and on the other hand that any such appeal will be limited to matters which the trial judge allows, to pretrial motions, and to jurisdictional defects.
Watson, 924 S.W.2d at 714.
Like the due process complaint raised in
Watson,
it is well recognized that a challenge to the voluntariness of a guilty plea is one of constitutional dimension.
See Meyers v. State,
623 S.W.2d 397, 402 (Tex.Crim.App. [Panel Op.] 1981). A guilty plea passes constitutional muster only when it is both voluntarily and intelligently made.
Brady v. United States,
397 U.S. 742, 747, 90 S.Ct. 1463, 1468, 26 L.Ed.2d 747, 756 (1970). However, as
Watson
and other decisions of the court of criminal appeals teach us, we have no jurisdiction to review constitutional complaints unless they are raised in accordance with the procedures of
We recognize that since the decisions in
Lyon
and
Davis,
two of our other sister courts have held that an appellant may challenge the voluntariness of his plea without complying with
In
Forcha,
the First Court of Appeals recognized that an involuntary plea is a non-jurisdictional defect that is not reviewable under
Strict application of rule 40(b)(1), as interpreted in Davis and Lyon . . . would mean that a claim that the plea was involuntary would never be reviewable, because it could not be raised in a pretrial motion, and no prudent judge would have knowingly accepted an involuntary plea. Thus, permission to appeal on those grounds would be virtually unobtainable. The trial court is simply not permitted to accept an involuntary plea. The Code of Criminal Procedure provides “[n]o plea of guilty or nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.” Tex.Code Crim.Proo. Ann. art. 26.13(b) (Vernon 1989) (emphasis added).
. . . Indeed, a close examination of Davis reveals that the Court of Criminal Appeals itself apparently viewed these two claims as somehow different from other “nonjuris-dictional defects” occurring after the plea. In Davis, the court first held that the appellant’s general notice of appeal had not conferred jurisdiction on the court of appeals to address a “nonjurisdictionai defect” (sufficiency of the evidence) occurring after the plea. The court then stated:
Finally, appellant raises the following issues: (1) whether the failure of her trial counsel to file a legally sufficient notice of appeal was ineffective assistance of counsel which denied her a meaningful right of appellate review, and (2) whether her plea was involuntary since it was contingent upon her being able to appeal the motion to suppress issue. While we granted appellant’s petition on these issues, we now note that appellant did not raise and argue either of these issues in her brief in the Court of Appeals, and that court consequently did not address them.... [W]e will not address appellant’s third and fourth grounds for review, and we dismiss those grounds as improvidently granted.
Davis, 870 S.W.2d at 47.
From the above-quoted language, it appears that the Court of Criminal Appeals would have reached these issues if they had been preserved for review. Therefore, we will address appellant’s claims.
Forcha, 894 S.W.2d at 509 (citation omitted).
Unlike the court in
Forcha,
the Fourteenth court in
Miller
offered no rationale for its holding that a challenge to an involuntary plea is an exception to
We disagree with Forcha’s premise that permission to appeal an involuntary plea is “virtually unobtainable.” Forcha, 894 S.W.2d at 509. Although as Forcha noted, involuntariness cannot be raised in a pretrial motion, it can be presented to the judge in a post-trial motion, as was done in this case. See also Torrez, 925 S.W.2d at 362 (voluntariness complaint raised in motion for new trial); Tillman, 919 S.W.2d at 837 (motion for new trial challenging voluntariness of negotiated plea based on fact defendant had been misinformed about time served). This would allow the judge to withdraw his acceptance of the plea, or grant permission to appeal on that ground if permission is requested. See Torrez, 925 S.W.2d at 362-63 (permission to appeal voluntariness granted in motion for new trial proceeding); Tillman, 919 S.W.2d at 837 (motion for new trial granted on basis of complaint that plea was involuntary). Certainly, no prudent judge would refuse to withdraw his acceptance of a plea after it is shown to be involuntary, nor would any reasonable judge refuse to grant a defendant permission to appeal on that ground.
Nevertheless, the fact that a trial judge may err in accepting an involuntary plea does not give us any greater authority for taking action in a case when we lack the jurisdiction to do so than when a trial court erroneously accepts an invalid plea in other
*194
contexts where the error cannot be raised in a pretrial motion. For example, it is error for a trial court to take a plea without a hearing in which sufficient evidence is introduced in support of it. Tex.Code CRIM.PROC. ANN. art. 1.15 (Vernon Supp.1996) (“[I]n no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.”). Yet, despite the fact that an insufficiency complaint cannot be raised by pretrial motion, the court of criminal appeals has held that the mandatory provisions of
We also refuse to speculate as did the court in
Forcha
about whether the court of criminal appeals would have reached the non-jurisdictional issues that were not preserved for review in
Davis.
If we were to infer anything from the quoted language from
Davis,
it would be that the court in
Davis
declined to reach the question of whether
The only other court that has addressed this specific issue in a reported decision
after
the
Lyon
and
Davis
decisions were handed down is the El Paso Court of Appeals. In
Delgado,
the El Paso Court of Appeals was asked by the State to follow the lead of the Dallas Court of Appeals and overrule
Rodriguez v. State,
850 S.W.2d 603, 605 (Tex.App.—El Paso 1993, no pet.), wherein the court had held (prior to
Lyon
and
Davis)
that it had jurisdiction to entertain a complaint regarding the voluntariness of a plea, even though the appellant failed to comply with the requirements of
In the Rodriguez case, the El Paso court had reasoned that “[t]he constitutional key to the validity of a guilty plea is that it is voluntarily and intelligently made.” Rodriguez, 850 S.W.2d at 605. Because “[t]he very purpose of Article 26.13 is to ensure that only pleas passing constitutional muster are accepted by trial courts,” the court held that the admonishment requirements of article 26.13 may be raised by a defendant at any time. Id. at 606. In reaching this conclusion, the court heavily relied on the fact that issues concerning the entry of the plea cannot be presented in a pretrial motion and that trial judges are prohibited from accepting involuntary pleas. Id.; see Forcha, 894 S.W.2d at 509-10. The court further noted that when a defendant enters an “open” plea of guilt (that is, one made without a plea bargain agreement) he does not waive the right to challenge the voluntariness of the plea under the Helms rule, Broddus v. State, 693 S.W.2d 459, 460 (Tex.Crim.App.1985); see Helms, 484 S.W.2d at 927 (waiver of nonjurisdictional defects occurs only “[wjhere a plea of guilty is voluntarily and understandingly made”), and then opined that the same protection should be afforded defendants pleading guilty with a plea bargain. Rodriguez, 850 S.W.2d at 606.
We disagree with the holding and analysis of Rodriguez for the reasons stated above. Supra at 191-192, 193-194. In addition, we believe Rodriguez‘s, reliance on the open plea waiver rule of Helms is misplaced because it ignores the distinct jurisdictional *195 limitations to appealing pleas made with a plea bargain.
Strictly speaking, there are no jurisdictional limitations in appealing an open plea of guilty so long as the defendant complies with the general notice provisions of
However, this exception to the
Helms
waiver rule does not enlarge our jurisdiction to review open pleas. Again, our jurisdiction to review a plea made without a plea bargain is predicated on whether the defendant complies with the general notice of appeal provisions of
More importantly, there are compelling policy reasons for treating negotiated pleas different from open pleas. As the court of criminal appeals in
Watson
recently pointed out, an important public policy served by the plea bargain system is conservation of judicial resources.
Watson,
924 S.W.2d at 714. A plea bargain assures the defendant that he will obtain an agreeable sentence and expeditious appellate review of contested legal matters, without the necessity of a full adversarial trial.
Id.
The State, on the other hand, obtains an acceptable disposition of the case confident that substantial judicial resources will not be wasted in a trial, or in the appeal of any matters other than those which a trial judge allows, those presented in pretrial motions, and matters involving jurisdictional defects.
Id.; see
One other case and its progeny bear mentioning,
Soto v. State,
837 S.W.2d 401 (Tex.App.—Dallas 1992, no pet.). In
Soto,
the Dallas Court of Appeals determined that a defendant pleading guilty pursuant to a plea bargain agreement may always challenge the voluntariness of a negotiated guilty plea on appeal.
Id.
at 403. Like
Forcha,
the reasoning in
Soto
was premised upon the fact that a plea bargain is predicated on a knowing and voluntary plea and that
Shortly after Soto, the Dallas court in another ease predating Lyon and Davis, Walker v. State, 843 S.W.2d 716 (Tex.App.—Dallas 1992, pet. refd), reiterated and expanded upon the position it had taken in Soto, holding that it had jurisdiction to review any alleged error that affects the validity of a guilty plea, “whether or not it implicates voluntariness.” Walker, 843 S.W.2d at 717. Walker ⅛ holding was premised on the rationale that the failure of a trial court to give *196 the admonishments listed in article 26.13 pri- or to the taking of the plea renders the plea involuntary; therefore, any complaint that challenges the validity of a guilty plea in that context is, in essence, a challenge to the voluntariness of the plea “whether or not” involuntarmess is actually alleged. Id.
Subsequent to the decisions in Lyon and Dams, however, the Dallas Court of Appeals revisited the issue in Penny v. State, 880 S.W.2d 59, 61 (Tex.App.—Dallas 1994, no pet.) (en banc). In Penny, the appellant complained of the trial court’s failure to admonish him regarding the range of punishment and deportation. Upon examining Lyon and Davis, the Dallas court overruled its prior holding in Walker “insofar as it holds we have jurisdiction to review any alleged error that affects the validity of a guilty plea, whether or not it implicates vol-untariness.” Id. at 61. Although the precise meaning of this holding is unclear from the opinion, it appears from the language of a more recent decision of the Dallas court involving an open plea that what the Dallas court meant in Penny is that it has no jurisdiction to review a challenge to the validity of a plea based on a failure to admonish unless “the point of error also contends that the failure to admonish rendered the defendant’s guilty plea unknowing or involuntary.” McGowin v. State, 912 S.W.2d 837, 841 (Tex.App.—Dallas 1995, no pet.). According to the court in McGowin, a point of error that contends that the defendant’s guilty plea was unknowing or involuntary alleges a “jurisdictional defect” that may always be challenged on appeal. Id. On the other hand, a point of error that does not expressly implicate volun-tariness alleges a nonjurisdictional defect that may not be raised on appeal. Id.
For the reasons explained in prior portions of this opinion, we disagree with the rationale and holding of Soto and the Dallas Court of Appeals’ decisions that follow it. Dallas is the only court that has characterized volun-tariness as a “jurisdictional defect.” Id. at 841. We agree with the other courts that recognize that voluntariness is a non jurisdictional defect for the reasons stated above. Supra, at 190-191; see Martinez, 907 S.W.2d at 35-36; Forcha, 894 S.W.2d at 509; Miller, 879 S.W.2d at 337; Rodriguez, 850 S.W.2d at 605.
Further, the underlying premise of the cited Dallas decisions is that trial courts are constitutionally prohibited from accepting involuntary pleas and that voluntariness cannot be raised by pretrial motion.
See Walker,
843 S.W.2d at 717;
Soto,
837 S.W.2d at 403-04. We have already demonstrated that we have no jurisdiction to review constitutional issues arising from a conviction based on a negotiated plea, absent compliance with the “but” clause of
Finally, we disagree with the Dallas court’s reasoning in
McGowin
that our jurisdiction to review the issue of voluntariness is invoked by merely alleging on appeal that the plea was “unknowing or involuntary.”
McGowin,
912 S.W.2d at 841. Assuming ar-guendo that the issue of voluntariness was an exception to the “but” clause of
CONCLUSION
In sum, the alleged violation of Fontenot’s right to counsel and the alleged involuntariness of Fontenot’s plea of nolo contendere are nonjurisdictional defects. The court of
*197
criminal appeals has unequivocally instructed us that we have no jurisdiction to review such defects in a plea bargained case, unless permission to appeal is obtained from the trial court as required by the “but” clause of
The appeal is dismissed for lack of jurisdiction.
Notes
. All emphases in the quoted portions are supplied.
. According to Fontenot, this admonishment applies only in felony cases. See Tex.Code Crim. ProcAnn. art. 26.13(a) (Vernon 1989) (listing admonishments court is required to administer before accepting defendant‘s plea of guilty or nolo contendere). The State does not contest this contention, and we do not address it due to our disposition of this appeal on jurisdictional grounds.
.Fontenot was admonished regarding the limitations of appeal under
IV. APPEAL
If the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed by you, you cannot appeal any matter without the Trial Court‘s permission, except for those matters raised by written motions prior to trial.
See
. The Helms rule remams viable in an appeal from a conviction based on an open plea where no plea bargain has been reached. Lynch v. State, 903 S.W.2d 115, 118 (Tex.App.—Fort Worth 1995, no pet.).
. Although we did reach the merits of the volun-tariness issue in Martinez, the question of whether we had jurisdiction to do so was not presented nor did we address it. See Martinez, 906 S.W.2d at 654-56; see also Brown v. State, 917 S.W.2d 387, 389-91 (Tex.App.—Fort Worth 1996, no pet.) (addressing voluntariness without reaching jurisdictional issue).
. The court also addressed an ineffective assistance of counsel claim based on a defective notice of appeal. Forcha, 894 S.W.2d at 509-10. The question of whether we have jurisdiction to reach an ineffective assistance of counsel complaint based upon errors occurring on appeal is not before us and we do not address it here.