BOBBY JOE EVANS v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Moseley

Bobby Joe Evans pleaded guilty to the felony offense of driving while intoxicated with an open container, third offense.   See Tex. Penal Code Ann. § 49.09(b)(2) (West 2011).   In accordance with a plea bargain agreement, the trial court assessed punishment of three years' imprisonment and a $1,500 fine.   Thereafter, appellant, although represented by counsel, filed a pro se motion for new trial alleging the prior convictions were not final, which the trial court denied.   On appeal, appellant's sole complaint is that the trial court abused its discretion by not setting an evidentiary hearing on his motion for new trial.

The background of the case and the evidence adduced at trial are well known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.   Tex.R.App. P. 47.2(a), 47.4.   Because we conclude we lack jurisdiction over this appeal, we dismiss.

In a case such as the one before us, where the defendant has been convicted on a plea of guilty and the trial court did not assess punishment in excess of that recommended by the prosecutor and agreed to by the defendant, before he may prosecute an appeal “he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.”   Tex.Code Crim. Proc. Ann. art. 44.02 (West 2006).   A trial court must certify a defendant's right of appeal.   See Tex.R.App. P. 25.2. In such a case, “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), (B).  Appellant's complaint that the trial court erred in failing to hold a hearing on his motion for new trial is not a matter raised by written motion filed and ruled on before trial.

Appellant's notice of appeal and his brief state that the trial court gave permission to appeal.   However, the trial court's rule 25.2(d) certification states the case is a plea bargain case and that “matters were raised by written motion filed and ruled on before trial, and not withdrawn or waived, and the defendant has the right of appeal[.]”  See Tex.Code Crim. Proc. Ann. art. 44.02;  Tex.R.App. P. 25.2 cmt. & app.   F. Thus, the record does not show appellant has the trial court's permission to appeal the issue he asserts here.   See Tex.R.App. P. 25.2(a)(2), (d);  Turley v. State, 242 S.W.3d 178, 179–80 (Tex.App.—Fort Worth, no pet.) (per curiam) (mem.op.) (dismissing issue because no permission to appeal complaint of failure to hold hearing on motion for new trial and issue not raised by written motion filed and ruled on before trial).

Accordingly, we dismiss this appeal for lack of jurisdiction.   See Chavez v. State, 183 S.W.3d 675, 680 (Tex.Crim.App.2006).

JIM MOSELEY JUSTICE