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Berry v. State

Texas Rule of Appellate Procedure 25.2(b)(3) applies only when there is an agreed punishment recommendation.

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Appellant Samuel Joseph Berry was indicted for aggravated sexual assault and indecency with a child by contact. See Tex. Pen. Code Ann. �� 21.11(a)(1), 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2001). *fn1 Pursuant to a plea bargain, the State abandoned the first count and appellant pleaded guilty to indecency with a child. The court assessed punishment at imprisonment for eight years and a $1500 fine. Appellant contends the court erred by reviewing the victim impact statement before imposing sentence. The State urges that we do not have jurisdiction to consider this contention. We conclude that we do have jurisdiction and that no error is presented. We will affirm the judgment of conviction.

Jurisdiction

The State argues that appellant’s general notice of appeal does not invoke this Court’s jurisdiction under the terms of Texas Rule of Appellate Procedure 25.2(b)(3). Under this rule, a defendant who pleads guilty to a felony has a limited right to appeal if “the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant.” Tex. R. App. P. 25.2(b)(3). If the notice of appeal in such a case does not state that the appeal falls within one of three permitted categories, it does not invoke the appellate court’s jurisdiction. Whitt v. State, 45 S.W.3d 274, 275 (Tex. App.–Austin 2001, no pet.); see also Cooper v. State, 45 S.W.3d 77, 79 (Tex. Crim. App. 2001) (rule 25.2(b) limits every appeal in plea bargain, felony case).

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