WILLIAMS v. STATE

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Court of Appeals of Texas,Fort Worth.

Curtis Lee WILLIAMS, Appellant, v. The STATE of Texas, State.

No. 2-97-469-CR.

Decided: December 18, 1997

Before CAYCE, C.J., and DAY and LIVINGSTON, JJ. Cynthia Viol, Arlington, for Appellant. Tim Curry, Criminal District Attorney, Fort Worth, for State.

OPINION

A grand jury indicted appellant for the offense of aggravated robbery with a deadly weapon.   Under a plea bargain agreement, appellant pleaded guilty to the lesser included offense of robbery by threat.   The trial court followed the plea bargain agreement, found the evidence supported appellant's guilt, and placed appellant on deferred adjudication community supervision for a five-year term.   Appellant violated the terms of his community supervision and the trial court proceeded to adjudicate appellant's guilt and impose a sentence of ten years' confinement.   Appellant raises one point alleging trial court error.

Appellant contends that the trial court erred because it did not order a presentence investigation (psi) report before sentencing him.  Article 42.12, section 9 of the Texas Code of Criminal Procedure provides that before a judge imposes sentence in a felony case, the judge “shall direct a supervision officer” to prepare a psi report.   Tex.Code Crim. Proc. Ann. art. 42.12, § 9 (Vernon Supp.1998).   Appellant argues that the language of article 42.12, section 9 is mandatory and that the trial court's failure to comply constitutes reversible error.   We do not reach the merits of appellant's claim as we are without jurisdiction over his appeal.

When a defendant enters a negotiated plea of guilty, and the punishment assessed does not exceed the punishment recommended by the prosecutor, the defendant's right to appeal is statutorily limited:

But if the appeal is from a judgment rendered on the defendant's plea of guilty ․ and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial;  or

(C) state that the trial court granted permission to appeal.

Tex.R.App. P. 25.2(b)(3).1

In the present case, appellant negotiated a plea of guilty in exchange for deferred adjudication community supervision.   When his community supervision was revoked, the trial court sentenced him within the agreed punishment range.   See Watson v. State, 924 S.W.2d 711, 714 (Tex.Crim.App.1996)(holding that when a prosecutor recommends deferred adjudication in exchange for a defendant's plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses any punishment within the range allowed by law).   Therefore, in order to invoke this court's jurisdiction, appellant's notice of appeal must cite one of the circumstances of rule 25.2.   It does not.   Accordingly, we dismiss this appeal for lack of jurisdiction.   See Lyon, 872 S.W.2d at 736.

FOOTNOTES

1.   Appellant argues that we should apply former Texas Rule of Appellate Procedure 40(b)(1) because that was the rule in effect at the time he filed his notice of appeal.   See Tex.R.App. P. 40(b)(1), 49 Tex. B.J. 565 (Tex.Crim.App.1986, revised 1997).   The Texas Court of Criminal Appeals, however, has ordered that we apply the new rules unless to do so would not be feasible or would work an injustice.   See Court of Criminal Appeals, Final Approval of Revisions to the Texas Rules of Appellate Procedure, order 2 (1997).The new rule is substantively identical to the language and case law interpretation of the former rule.   See Tex.R.App. P. 40(b)(1), 49 Tex. B.J. 565 (Tex.Crim.App.1986, revised 1997);  Brown v. State, 943 S.W.2d 35, 41 (Tex.Crim.App.1997);  Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.), cert. denied, 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994).   Using either version will yield the same result.   Therefore, using the new rule is appropriate because to do so does not work an injustice.

PER CURIAM.

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