Victor Eugene Bailey v. State ( 2002 )

No. 04-02-00625-CR Victor Eugene BAILEY, Appellant v. The STATE of Texas, Appellee From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2000-CR-514-B Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Alma L. López, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 24, 2002

DISMISSED FOR LACK OF JURISDICTION

Appellant, Victor Bailey, appeals his conviction for aggravated assault. Appellant pled nolo contendere pursuant to a plea-bargain agreement. The punishment assessed by the court did not exceed the punishment recommended under the plea-bargain agreement. Appellant filed a pro se notice of appeal noting that the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(3). Subsequently, newly appointed appellate counsel filed a motion to file a timely amended notice of appeal indicating that appellant had not been given permission to appeal, but that there may have been a jurisdictional defect. This court granted the motion and ordered the filing of the reporter's record from the hearing. After reviewing the clerk's record and reporter's record, appellant's counsel filed a letter and motion to withdraw as the attorney for appellant in this court on December 12, 2002, indicating that there were no jurisdictional defects and that this court lacks jurisdiction.

Where the record does not affirmatively substantiate the recitations in the notice of appeal regarding the basis for this court's jurisdiction, the court's jurisdiction is not properly invoked. See Garcia v. State, 76 S.W.3d 33, 36 n. 3 (Tex. App.--Amarillo 2001, pet. ref'd); Betz v. State, 36 S.W.3d 227, 228 (Tex. App.--Houston [14th Dist] 2001, no pet). Our review of the record supports counsel's assertions. Accordingly, this court does not have jurisdiction to consider this appeal. See White v. State, 61 S.W.3d 424, 426 (Tex. Crim. App. 2001); Cooper v. State, 45 S.W.3d 77, 82-83 (Tex. Crim. App. 2001).

Therefore, appellate counsel's motion to withdraw is granted. Appellant's appeal is dismissed for lack of this court's jurisdiction.

PER CURIAM

DO NOT PUBLISH