Suzanne Dale Raikes a/k/a Delores Gene Russel v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-94-00125-CR

Case Date: 12/14/1994

Plaintiff: Suzanne Dale Raikes a/k/a Delores Gene Russel

Defendant: The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

Preview:Suzanne Dale Raikes a/k/a Delores Gene Russel v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County
Raikes v. State /**/ IN THE TENTH COURT OF APPEALS

Nos. 10-94-125-CR, 10-94-126-CR & 10-94-127-CR

SUZANNE D. RAIKES A/K/A SUZANNE DALE RAIKES AND DELORES GENE RUSSEL, A/K/A SUZANNE ROGERS RAIKES Appellant v.

THE STATE OF TEXAS, Appellee

From the Criminal District Court No. 3 Dallas County, Texas Trial Court Nos. F93-31167-J, F93-03488-J & F93-31849-J

MEMORANDUM OPINION

Suzanne Raikes appeals from convictions in three causes. She has filed a brief, conceding that she cannot appeal in cause numbers 10-94-125-CR and 10-94-126-CR, but challenging the sufficiency of the evidence to support her

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conviction in cause number 10-94-127-CR. The State argues in a motion that we do not have jurisdiction over cause 10-94-127-CR and that we should strike her brief because her attorney has not complied with the requirements for a frivolous appeal in the other two causes. See Johnson v. State, No. 10-94-035-CR (Tex. App. Waco, October 19, 1994) (not yet reported). We will grant the State's motion to dismiss and, sua sponte, dismiss the other two causes as well. Cause numbers 10-94-125-CR and 10-94-126-CR have the same procedural history. The Dallas County grand jury indicted Raikes for theft and she entered an open plea of guilty to the charges on September 3, 1993. See Tex. Penal Code Ann. 31.03 (Vernon 1989). The court deferred a finding on her plea for six years in both causes. See Tex. Code Crim. Proc. Ann. art. 42.12, 5 (Vernon Supp. 1995). Raikes failed to comply with the conditions of probation, and the State moved to adjudicate her guilt on December 10. The State's motions were based on a new indictment for theft in cause number 10-94-127-CR. On February 24, 1994, Raikes entered a guilty plea to the new indictment and the State's motions to adjudicate on the earlier charges in exchange for concurrent ten-year sentences in the penitentiary. The court accepted the parties' agreement and sentenced her accordingly. On March 9, Raikes filed notices of appeal in each of the causes, stating that "the appeal shall be limited to any matters raised by written motion and ruled upon prior to trial and any defects occurring after entry of the plea." Cause number 10-94-127-CR is an appeal from a conviction following a plea bargain in which the sentence assessed did not exceed that agreed upon. Thus, to confer jurisdiction on this court, Raikes' notice of appeal must state either that she is appealing with the permission of the trial court or must specify that "those matters" were raised and ruled upon before trial via written motions. See Tex. R. App. P. 40(b)(1); Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994). She is required to "include within [her] notice what the grounds of appeal are" and the fact that these grounds were properly raised or that she has permission of the court to appeal them. See Jones v. State, 796 S.W.2d 183, 186 (Tex. Crim. App. 1990). This rule applies to defects occurring before or after the plea. Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994). Merely asserting that the appeal "shall be limited" to issues which were raised pretrial is not sufficient. See Greatsinger v. State, 881 S.W.2d 18, 20 & n.1 (Tex. App. Houston [1st Dist.] 1994, pet. ref'd). Thus, we do not have jurisdiction over her appeal in cause number 10-94-127-CR. See Davis, 870 S.W.2d at 47. Cause numbers 10-94-125-CR and 10-94-126-CR are appeals from deferred adjudication proceedings. Raikes' attorney states that, as such, these causes are not appealable, but this blanket conclusion is incorrect. Although the decision to adjudicate guilt is not appealable, "[a]fter an adjudication of guilt, all proceedings, including [the] defendant's appeal continue as if the adjudication of guilt had not been deferred." Tex. Code Crim. Proc. Ann. art. 42.12, 5(b). We must examine the proceedings to determine which issues Raikes can appeal. See Olowosuko v. State, 826 S.W.2d 940, 941 (Tex. Crim. App. 1992). We observe that Raikes pleaded true to the allegations in the State's motions to adjudicate in exchange for a recommendation of ten years in the penitentiary, to be served concurrently. This is a plea bargain. See Perkins v. Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987). Thus, to bring an appeal from the proceedings "as if the adjudication of guilt had not been deferred," her notice of appeal must conform to the requirements of the Rules of Appellate Procedure. See Tex. R. App. P. 40(b)(1); Lyon, 872 S.W.2d at 736; Jones, 796 S.W.2d at 186. Again, as above, her notice is not sufficient. See Davis, 870 S.W.2d at 46; Jones, 796 S.W.2d at 186; Greatsinger, 881 S.W.2d at 20 & n.1. Thus, we do not have jurisdiction over her appeal in cause numbers 10-94-125-CR or 10-94-126-CR either. See id. Raikes argues that we should not dismiss these appeals on the State's motion because the State did not file the motion within thirty days of the filing of the transcript in this court. See Tex. R. App. P. 72. However, we are required to review challenges to our jurisdiction raised at any time before the issuance of our mandate. See Riley v. State, 825 S.W.2d 699, 700 (Tex. Crim. App. 1992). Additionally, we must note, sua sponte, when we lack jurisdiction. See Tex. Ass'n of Business v. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). Therefore, we dismiss these appeals for want of jurisdiction. PER CURIAM

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Before Chief Justice Thomas, Justice Cummings, and Justice Vance Dismissed for want of jurisdiction Opinion delivered and filed December 14, 1994 Do not publish

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