Carl Mitich v. State

NUMBERS 13-00-257-CR 13-00-258-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ CARL MITICH , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 347th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Yañez, and Castillo Opinion by Justice Castillo Appellant pled guilty to possession of less than a gram of cocaine, a state jail felony, on July 30, 1999, and was sentenced to two years in state jail. This sentence was suspended, and he was given three years of community supervision pursuant to a plea bargain agreement. During this period of community supervision, appellant was charged, by information, with delivery of cocaine. Pursuant to a plea bargain, on February 29, 2000, appellant pled guilty to a state jail felony charge for delivery of cocaine, cause number 00-CR-267-H, and pled true to the charge contained in the Motion to Revoke Probation on his first offense, cause number 99-CR-439-H. Appellant was sentenced to nine months in state jail for each charge, with the sentences running concurrently. In these appeals, appellant claims that both his conviction under cause number 00-CR-267-H and his community supervision revocation under cause number 99-CR-439-H should be overturned, based on ineffective assistance of counsel. We dismiss the appeal from the guilty plea for want of jurisdiction and affirm the judgment of the trial court as to the plea of true on the motion to revoke. A. The Guilty Plea on Cause Number 00-CR-267-H 1. Texas Rule of Appellate Procedure 25.2(b)(3) requirements A plea-bargaining defendant's right to appeal is limited under Texas law. A notice of appeal from a plea bargain must specify that: (1) the appeal is for a jurisdictional defect, (2) the substance of the appeal was raised by written motion and ruled on before trial, or (3) the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). This rule applies to appellant's plea of guilty on the delivery charge. None of these jurisdictional factors were satisfied by appellant's original notice of appeal. Therefore, his general notice of appeal failed to confer jurisdiction upon us under rule 25.2(b)(3) to address claims related to his guilty plea. (1) 2. The trial court's "permission" to appeal Appellant claims in his supplemental notice of appeal from the guilty plea that the trial court granted permission to appeal, thus fulfilling the requirements of rule 25.2(b)(3). In fact, however, the trial court never granted permission sufficient to vest jurisdiction in this court to hear the appeal. We first note that the supplemental notice of appeal was incapable of independently conferring jurisdiction upon us. The original notice of appeal does not allege that the trial court granted permission to appeal. While an amended notice is permitted under the current rules of appellate procedure, such an amended notice cannot grant this Court jurisdiction to hear an appeal where none originally existed. State v. Riewe, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000); Tex. R. App. P. 25.2(d). Jurisdictional defects contained in a notice of appeal cannot be corrected by an amended notice of appeal once the deadline for perfecting the appeal has elapsed. Craddock v. State, 32 S.W.3d 886, 888 (Tex. App.--Waco 2000, no pet.). Because appellant's original notice of appeal did not confer jurisdiction on this Court, and the amended notice of appeal was filed well after the deadline for perfecting an appeal had passed, nothing in the amended notice can act to grant this Court jurisdiction. State v. Brown, 28 S.W.3d 609, 610-11 (Tex. App.--Corpus Christi 2000, no pet.) (citing Riewe in holding that "this Court cannot retroactively gain jurisdiction over this case" where the original notice of appeal failed to confer jurisdiction, even though the amended notice contained the necessary certifications). Moreover, the facts alleged in the amended notice of appeal, even if true, would have failed to confer jurisdiction on this Court to hear this appeal. A notice of appeal does not confer jurisdiction simply by stating that the trial court granted permission; this statement must also be shown to be true. Solis v. State, 890 S.W.2d 518, 520 (Tex. App.--Dallas 1994, no writ). The only facts alleged by appellant that would support the notion that the trial court granted permission to appeal are the oral statements made by the trial court judge in a June 5, 2000 indigency hearing, three months after the plea was entered and two months after the expiration of the deadline for perfecting an appeal. At that hearing, the court told Mr. Mitich, "You can appeal if you want to." Assuming, arguendo, that this statement was intended to constitute permission to appeal, nothing the court said on that late occasion could have conferred jurisdiction on us to hear the appeal. Accordingly, we dismiss the appeal from the guilty plea for want of jurisdiction. B. The Plea of "True" on the Motion to Revoke, Cause Number 99-CR-439-H 1. Jurisdiction Appellant also appeals from his plea of true to the motion to revoke his community supervision. The notice requirements of rule 25.2(b)(3) do not apply to an appeal from a revocation of community supervision. Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998). This is because the challenge under these circumstances is limited to the propriety of the revocation itself, rather than to the underlying conviction. Rojas v. State, 943 S.W.2d 507, 509 (Tex. App.--Dallas 1997, no pet.). Therefore, appellant's general notice of appeal was sufficient to confer jurisdiction on this Court with respect to his appeal from the community supervision revocation. 2. Ineffective Assistance of Counsel To challenge a plea entered as the result of a plea bargain on the basis of ineffective assistance of counsel, the defendant must demonstrate that (1) counsel's advice was not within the range of competence demanded of attorneys in criminal cases, and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). Under the first part of this test, the defendant must overcome a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Under the second prong of the test, we consider both the circumstances surrounding the plea and the gravity of the misrepresentation as it pertained to the defendant's plea determination. Ex Parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999). Appellant has presented no evidence that his attorneys' actions mislead him as to the grounds of his plea bargain or prevented him from making a voluntary and informed decision to enter the plea of true on the motion to revoke. Appellant asserts that his attorneys failed to explain his waiver of rights with respect to his plea, failed to explain the plea papers to him, failed to discuss potential defenses with him, were not prepared to provide appellant with a meaningful defense at trial, and threatened to withdraw as counsel if he chose to reject the plea. These assertions are not supported by the record. On the contrary, appellant stated at his revocation hearing that he had the opportunity to discuss the motion to revoke with both of his attorneys and also had an opportunity to discuss the charges pending against him with his attorneys. In addition, he stated that he had discussed possible defenses with his attorneys and was pleased with their services. Based on this record, we cannot conclude that appellant met his burden of proving that his pleas were made as a result of ineffective assistance of counsel. Conclusion Accordingly, we affirm the judgment of the trial court with respect to the plea of true on the motion to revoke community supervision and dismiss the appeal on the guilty plea for want of jurisdiction. ERRLINDA CASTILLO Justice Publish. Tex. R. App. P. 47.3. Opinion delivered and filed this 3rd day of May, 2001. 1. The Texas Court of Criminal Appeals recently held that an appeal based on voluntariness of the plea is not exempt from the notice requirements of rule 25.2(b)(3). Cooper v. State, No. 1100-99, slip op. at 12, 2001 Tex. Crim. App. LEXIS 25, at *16 (Tex. Crim. App. April 4, 2001). This holding abrogates our contrary holding in Marshall. Marshall v. State, 28 S.W.3d 634, 637-38 (Tex. App.--Corpus Christi 2000, no pet.). Accordingly, even if appellant had directly raised the voluntariness of his guilty plea in his appeal, we would have no jurisdiction to hear such a claim.