Tyrone Anthony Bell v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00141-CR ______________________________ TYRONE ANTHONY BELL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court No. F02-00608-WL Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Under a plea agreement, Tyrone Anthony Bell pled guilty to, and was convicted of, theft of property, the value of which was $1,500.00 or more but less than $20,000.00. The trial court set punishment at two years' imprisonment and a fine of $1,000.00, within the terms of the plea agreement. In accordance with Rule 25.2(a)(2), the trial court filed a certification of defendant's right of appeal stating this matter "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2(a)(2). Bell now appeals. Under amended Rule 25.2(a)(2), Bell was entitled to appeal only "those matters that were raised by written motion filed and ruled on before trial," or "after getting the trial court's permission to appeal." (1) The trial court certified that neither of these circumstances apply by stating that there is no right of appeal. See Comb v. State, 101 S.W.3d 794 (Tex. App.-Houston [1st Dist.] 2003, no pet. h.). (2) We lack jurisdiction (3) over this appeal and therefore dismiss it. Josh R. Morriss, III Chief Justice Date Submitted: September 3, 2003 Date Decided: September 4, 2003 Do Not Publish 1. Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Because Bell's notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended rules, the amended rules apply to this appeal. Newly amended Rule 25.2(a) reads, in pertinent part: (2) A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal. Tex. R. App. P. 25.2(a). 2. A plea agreement rests on the basis that it and the resulting guilty plea are voluntarily and understandably made; an involuntary plea, however, may be raised by a motion for new trial and habeas corpus, not on appeal. Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001). 3. We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). and Collom & Carney Clinic's motion for summary judgment. The court also severed the claims against those defendants and assigned the severed litigation a new cause number, 01C1015B-005. An appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). This includes concluded matters that are severed, because those matters are then final. See Baker v. Monsanto Co., 111 S.W.3d 158 (Tex. 2003). The notice of appeal filed October 29, 2004, timely perfected appeal from the judgment in the original case, signed October 1, 2004. However, in that case, only the Hospital remained as a defendant. O'Donald did not timely perfect his appeal in the summary judgment rendered in favor of Hillis, Smith, and Collom & Carney Clinic, which became final on severance. The motion is granted. We order the appeal against Hillis, Smith, and Collom & Carney Clinic severed from that of the Hospital, and we assign it to cause number 06-05-00050-CV. The appeal against the Hospital will retain the original cause number, 06-04-00121-CV. We dismiss the appeal in cause number 06-05-00050-CV. Donald R. Ross Justice Date Submitted: March 29, 2005 Date Decided: March 30, 2005