Haller v. StateHaller v. State
- Reporters:
- , ,
- Before:
- Seerden
Lead Opinion
OPINION
YÁÑEZ, Justice.In July 1992, pursuant to a plea bargain, appellant pled nolo contendere to fоur separate felony offenses (escape, aggravated assault, unlawful possession of a firearm, and tampering with evidence). The trial court followed the plеa recommendation, deferred adjudication and placed appellаnt on probation for ten years in each case. In August 1994, the trial court adjudicated the aggravated assault, unlawful possession, and tampering with evidence eases and sеntenced appellant to ten years in prison for each offense. The trial court ordered 1) the tampering-with-evidence sentence to run consecutive to thе unlawful-possession sentence, and 2) the unlawful-possession sentence to run consеcutive to the aggravated assault sentence. Appellant filed notices of appeal in only the tampering-with-evidence and unlawful-possession convictions. By two points of error, appellant argues that the trial court erred by ordering cumulated sentences. For reasons about to be stated, we dismiss the appeals.
Recently, in Watson v. State, 924 S.W.2d 711, 714 (Tex.Crim.App.1996), the Court of Criminal Appeals held that a defendant who exchanged a plea of guilty for a recommendation of deferred adjudication faces the same cоnsequences as any other defendant who pleads guilty pursuant to a plea bargain. One consequence is that the defendant’s appeal, when adjudication ultimatеly occurs, is limited to matters raised by written motion and ruled on before trial, unless the trial judge grаnts permission to appeal. Another consequence is that the defendant, even if he desires to raise one of the appealable matters, must comply with Texаs Rule of Appellate Procedure 40 and include in his notice of appeal that the trial judge granted permission to appeal or that the *263errors assigned on aрpeal were raised by written motion and ruled on before trial. Tex.RA.pp. P. 40(b)(1).
In the present eases, appellant’s notices of appeal do not comply with Rule 40(b)(1).1 Moreover, appellant attempts to appeal matters that were not raised by pretrial motion, and appellant did not receive the trial court’s permission to appeal. Thus, we may not address the complaints raised. See Rhem v. State, 873 S.W.2d 383, 384 n. 2 (Tex.Crim.App.1994); Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994); Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App.1994).
While we are barrеd from addressing the merits of appellant’s complaints because he neither raised them pretrial nor obtained the trial court’s permission to appeal, we point out that the matters may be raised through post-conviction writ of habeas corpus. See
Wе recognize that a defendant may not, pursuant to a plea agreement, agree to terms of punishment which are not otherwise authorized by law. Ex parte Sims, 868 S.W.2d 803 (Tex.Crim.App.1993). For example, in Sims, the defendant agreed to accept cumulated sentences when, by operation of
If the facts show that appellant’s two offenses in question were a part of the same criminal episode, the trial court was not permitted to cumulate the sentences. Sims, 868 S.W.2d at 804;
We also note thаt the record in this case reveals few facts about the actual offenses themselves, i.e., whether they were a part of the same criminal episode, because the convictions are supported by bare-boned judicial confessions. Accordingly, the better avenue for relief is through habeas corpus.
For the reasons stated above, the appeals are dismissed. Watson, 924 S.W.2d at 715.
Notes
. Amendment of the notice оf appeal to conform to Rule 40(b)(1) is not permitted. Jones v. State, 796 S.W.2d 183, 186-87 (Tex.Crim.App.1990).
Concurrence Opinion
concurring.
I agree with the disposition of this сase; however, I write separately because I prefer not to express аn opinion with regard to the wisdom of Watson v. State, 924 S.W.2d 711 (Tex.Crim.App.1996) or to speculate as to matters not contained in the record of this case.