Cory D. Marks v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00053-CR ______________________________ CORY DEAN MARKS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 402nd Judicial District Court Wood County, Texas Trial Court No. 17,493-2002 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Cory Dean Marks has filed an appeal from his conviction on his plea of guilty pursuant to a negotiated plea agreement for the offense of criminal mischief. Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Marks' notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended rules. The amended rules therefore apply to this appeal. Rule 25.2(a) was amended to read, 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 defendant's plea is 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). The trial court filed a certification of defendant's right of appeal in accordance with Rule 25.2(a)(2). It states that this "Is a plea-bargain case, and the Defendant has NO right of appeal." The written admonishments reflect that Marks entered into a negotiated plea agreement and contain language informing him that, if the punishment did not exceed the agreed recommendation, he did not have the right to appeal without permission of the court except for matters raised by written motions filed before trial. We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996). Marks entered into a negotiated plea agreement that the trial court did not exceed at sentencing. Under amended Rule 25.2(a)(2), Marks 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." The trial court certified that neither of these circumstances apply by stating that there is no right of appeal. See Comb v. State, No. 01-03-00037-CR, 2003 WL 1090438 (Tex. App.-Houston [1st Dist.] Mar. 13, 2003, no pet. h.). We hold that we lack jurisdiction over the appeal. We dismiss the appeal. Jack Carter Justice Date Submitted: April 30, 2003 Date Decided: May 1, 2003 Do Not Publish ed attempts. Under these facts and the statute, Murph's argument that his activities occurred after the theft was completed is unavailing. The record contains evidence of actions that reflect the necessary mens rea. Thus, the trial court did not err by overruling the motion for an instructed verdict. The contention of error is overruled. Murph also contends that the court erred in failing to grant a motion for continuance based on the notice given concerning the enhancement allegations. Murph argues that, because the State only gave him notice it intended to use out-of-state convictions as enhancement four days before jury selection, (1) he did not have constitutionally adequate notice. He contends the State also declined to actually produce a copy of the paperwork from the State of Minnesota until the punishment phase of trial was actually beginning. Murph correctly notes he was entitled to notice. (2) However, to preserve a claim that a motion for continuance was improperly denied, a written motion for continuance must be filed. Here, no written motion for continuance was ever presented to the trial court. Dewberry holds specifically that a motion for continuance must be made in writing, and must be sworn; otherwise, any complaint is forfeited. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999). Although there was some discussion about the timeliness of the notice, and a statement by counsel that he would ask for ten days' notice for an enhancement paragraph, no ruling was made on the request. Further, Murph never presented the trial court with a written motion for continuance. In the absence of such written and sworn motion, no error is preserved. Id. Accordingly, the contention now raised on appeal was not adequately presented to the trial court for decision and has not been preserved for our review. See Tex. R. App. P. 33.1. We affirm the judgment. Jack Carter Justice Date Submitted: April 2, 2007 Date Decided: April 25, 2007 Do Not Publish 1. Murph argues that only one "working day" was available after the notice. 2. See Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Richardson v. State, 170 S.W.3d 855, 857 (Tex. App.--Texarkana 2005, pet. ref'd).