Nos. 05-02-01864-CR, 05-02-01865-CR.
Opinion April 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F94-22004-IL, F01-50810-VL. Dismissed.
Before Justices JAMES, FRANCIS, and LANG.
Opinion By Justice LANG
Winston Charles Flood appeals following revocation of his probation in cause no. 05-02-01864-CR and conviction in cause no. 05-01-01865-CR. In two points of error, appellant contends the trial court's judgment in cause no. 05-02-01864-CR should be reformed to correct several clerical errors and the fine amount owed by appellant, and the judgment in cause no. 05-02-01865-CR should be reformed to show appellant was sentenced pursuant to a plea bargain agreement. For the reasons stated below, we sustain, in part, appellant's point of error in cause no. 05-02-01864-CR, and we dismiss the appeal in cause no. 05-02-01865-CR.
Cause No. 05-02-01864-CR
Appellant waived a jury trial and entered a non-negotiated guilty plea to possession with intent to deliver cocaine in an amount less than twenty-eight grams. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2935 (amended 1993) (current version at Tex. Health Safety Code Ann. § 481.112 (Vernon Supp. 2003)). The trial court sentenced appellant to ten years' confinement, probated for ten years, and assessed a $5000 fine. Subsequently, the trial court granted the State's motion to revoke probation, revoked appellant's probation, and sentenced him to five years' confinement. Appellant originally filed an untimely notice of appeal, and we dismissed the appeal. Subsequently, the Texas Court of Criminal Appeals granted appellant an out-of-time appeal. Appellant contends the judgment revoking probation should be modified because the name of the presiding judge, counsel's name, the degree of the offense, and the amount of the fine owed by appellant is incorrect. The State responds the judgment should be modified only to the extent of correcting the clerical errors, but the fine should remain. We agree with the State. The motion to revoke probation alleged, inter alia, that appellant did not pay "court costs and fine as directed and is $1724.41 delinquent." The trial court's judgment states that appellant was sentenced to five years' confinement "and a fine of $3,298.91." Nothing in the record shows that the fine in the judgment revoking probation was not correctly calculated. However, the record does show that the judgment contains the three clerical errors complained of by appellant. We sustain appellant's point of error regarding only the clerical errors. Cause No. 05-02-01865-CR
Appellant waived a jury trial and entered a negotiated guilty plea to possession of cocaine in an amount of one gram or more but less than four grams. See Tex. Health Safety Code Ann. § 481.115(a), (c) (Vernon Supp. 2003). The trial court sentenced appellant to five years' confinement and assessed a $1000 fine. Appellant originally filed an untimely notice of appeal, and we dismissed the appeal. Subsequently, the court of criminal appeals granted appellant an out-of-time appeal. Appellant contends the trial court's judgment should be reformed to show he was sentenced pursuant to a plea bargain agreement instead of an open plea. The State agrees the judgment should be modified to show the terms of the plea bargain agreement. A defendant in a plea-bargained, felony case must file a notice of appeal that states: (1) the appeal was 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. See Tex. R. App. P. 25.2(b)(3) (former rule); Cooper v. State, 45 S.W.3d 77, 83 (Tex.Crim.App. 2001). Appellant filed a general notice of appeal which does not give us jurisdiction to address his complaint. Conclusion
We modify the trial court's judgment revoking probation in cause no. 05-02-01864-CR as follows: (1) the section entitled "Judge Presiding" is modified to show "Manny Alvarez," (2) the section entitled "Attorney for Defendant" is modified to show "Lisa Exum," and (3) the section entitled "Degree" is modified to show "First." See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment. We dismiss the appeal in cause no. 05-02-01865-CR for want of jurisdiction.