Patrick Andre Denley v. State of Texas

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-00-566 CR ____________________ PATRICK ANDRE DENLEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 81756 OPINION A grand jury indicted Patrick Andre Denley as an habitual offender for aggravated robbery involving the use of a deadly weapon. The State abandoned the allegation regarding the use of a deadly weapon and proceeded to trial on the lesser included offense of robbery. The trial court accepted a plea bargain agreement between Denley and the State, in which the State abandoned four allegations of prior convictions, Denley pleaded guilty to robbery as a repeat offender, and the trial court sentenced Denley to confinement in the Institutional Division of the Texas Department of Criminal Justice for thirty (30) years. One day after Denley was sentenced in accordance with the terms of the plea bargain agreement, Denley filed a pro se motion to withdraw his plea and a notice of appeal. A timely filed motion for new trial, which alleged ineffective assistance of counsel, was denied by the trial court after an evidentiary hearing at which both Denley and his trial counsel testified. Appellate counsel filed an amended notice of appeal. The trial court denied permission to appeal. Denley raises four points of error in his brief: 1) that the 30 year sentence is excessive and constitutes cruel and unusual punishment; 2) that he did not enter his plea freely and voluntarily; 3) that the trial court erred in denying Denley's motion for new trial because Denley demonstrated that his guilty plea was not knowing or voluntary; and 4) that he is entitled to a new trial because he received ineffective assistance of counsel at trial. The record includes a written plea bargain agreement in which Denley and the State agreed to a punishment recommendation of thirty (30) years of confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court followed the agreement when it sentenced Denley. Neither the pro se notice of appeal nor the amended notice of appeal complies with the requirements for notice of appeal from a negotiated plea. See Tex. R. App. P. 25.2(b)(3). The trial court's permission was required in order for Denley to pursue an appeal. The trial court denied that permission, leaving the writ of habeas corpus as Denley's avenue for relief. Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001). We lack the jurisdiction to consider the points of error raised in Denley's brief. Id. at 80 (voluntariness of the plea); Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994)(ineffective assistance of counsel); Morris v. State, 892 S.W.2d 444, 446 (Tex. App.--San Antonio 1995, pet. ref'd)(cruel and unusual punishment). The appeal is dismissed for lack of jurisdiction. APPEAL DISMISSED. PER CURIAM Submitted on December 11, 2001 Opinion Delivered December 19, 2001 Do Not Publish Before Walker, C.J., Burgess and Gaultney, JJ.