Ex Parte Albert V. Jessep--Appeal from 47th District Court of Potter County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-09-00368-CR

Case Date: 11/04/2010

Plaintiff: Ex Parte Albert

Defendant: Jessep--Appeal from 47th District Court of Potter County

Preview:Lee Edward Booten v. State of Texas--Appeal from
208th District Court of Harris County
No. 04-01-00443-CR
Lee Edward BOOTEN,
Appellant
v.
STATE of Texas,
Appellee
From the 208th Judicial District Court, Harris County, Texas
Trial Court No. 530364
Honorable Jan Krocker, Judge Presiding (1)
PER CURIAM
Sitting: Paul W. Green, Justice
Sarah B. Duncan, Justice
Karen Angelini, Justice
Delivered and Filed: August 29, 2001
MOTION TO WITHDRAW GRANTED; MOTION FOR EXTENSION OF TIME DENIED; DISMISSED FOR
LACK OF JURISDICTION
Lee Edward Booten pled guilty to aggravated sexual assault of a child and was granted deferred adjudication for ten
years within the terms of a negotiated plea bargain. The State subsequently moved to revoke, and Booten pled true to
violation of the conditions of his community supervision by delivery of cocaine. Pursuant to a second negotiated plea
bargain, Booten was sentenced to ten years in prison. He thereafter filed a pro se general notice of appeal.
On July 27, 2001, following review of the clerk's record, we informed Booten that it appeared this court lacked
jurisdiction over the appeal and ordered Booten to file a letter response explaining those points or issues that might
warrant continuation of the appeal notwithstanding the jurisdictional limitations outlined in our order. In response,
Booten's court-appointed attorney on appeal filed an Anders brief in which counsel concludes this appeal is frivolous
and without merit. Counsel also filed a motion to withdraw.
Because Booten complains of a conviction based on a plea of guilty resulting in deferred adjudication community
supervision and the punishment assessed did not exceed the punishment agreed to pursuant to the negotiated plea
bargain, rule 25.2(b)(3) requires the notice of appeal specify the appeal is from a jurisdictional defect, specify the
substance of the appeal was raised by written motion and ruled on before trial, or state the trial court granted
permission to appeal. Tex. R. App. P. 25.2(b)(3); see Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App.
1996). Booten's general notice of appeal does not meet any of these required conditions.
Further, article 42.12, section 5(b) provides that in a case involving a deferred adjudication, no appeal may be taken
from the trial court's decision to proceed to adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon
Supp. 2001); see Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Additionally, if a post-adjudication
appeal raises issues relating to the original deferred adjudication proceeding, the appeal is untimely and must be
dismissed for want of jurisdiction unless the issue relates to whether the original judgment deferring appellant's
adjudication is void. See Tex. R. App. P. 26.2(a); Nix v. State, No. 793-00, 2001 WL 717453, at *2 (Tex. Crim. App.
June 27, 2001); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).
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Because Booten's general notice of appeal does not comply with rule 25.2(b)(3), the court only has jurisdiction to
consider issues relating to: (1) the trial court's jurisdiction; (2) the process by which the appellant was sentenced; or (3)
whether the original judgment deferring appellant's adjudication is void. See Nix v. State, No. 793-00, 2001 WL
717453, at *2 (Tex. Crim. App. June 27, 2001); Vidaurri v. State, No. 151-99, 2001 WL 687375, at *4 (Tex. Crim.
App. June 20, 2001); Cooper v. State, 45 S.W.3d 77, 78 (Tex. Crim. App. 2001); Martinez v. State, 5 S.W.3d 722, 724-
25 (Tex. App.--San Antonio 1999, no pet.).
Booten's response states no grounds on which this court may accept jurisdiction of his appeal. Tex. R. App. P.
25.2(b)(3). Booten's motion for extension of time to file a pro se brief is denied. We grant the motion to withdraw
filed by Booten's counsel. Counsel's Anders brief is stricken for lack of jurisdiction. The appeal is dismissed for lack of
jurisdiction.
PER CURIAM
DO NOT PUBLISH
1. Judge Krocker signed the Judgment Adjudicating Guilt. Judge John H. Kyles signed the initial Probation Order and
Deferment of Adjudication of Guilt.
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