Rene Cardona v. State of Texas ( 2001 )

NO. 07-01-0208-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
DECEMBER 7, 2001
______________________________
RENE CARDONA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B13652-0002; HON. EDWARD L. SELF, PRESIDING
_______________________________
Before BOYD, C.J., QUINN AND JOHNSON, J.J.
Rene Cardona, appellant, appeals from a judgment revoking his community
supervision and sentencing him to prison. Through his sole point of error, he contends
the trial court lacked jurisdiction to convict him of the offense of indecency with a child by
exposure. This is allegedly so because the offense was not a lesser included offense of
the one charged in the indictment, i.e., sexual assault of a child. We dismiss the appeal.
Appellant was charged by indictment with the offense of sexual assault of a child.
Pursuant to a plea agreement, however, he pled guilty to the offense of indecency, as
mentioned above. Furthermore, the trial court levied sentence, suspended same, and
placed him on community supervision in accordance with the plea agreement. Thereafter,
the state moved to revoke his community supervision, which motion the court granted.
Appellant subsequently filed a general notice of appeal and an appellant’s brief. And, as
mentioned above, he questions the trial court’s authority to convict him of the crime it did.
Because appellant pled guilty in accordance with a plea bargain, the punishment
levied by the trial court did not exceed that agreed to in the bargain, and appellant
effectively attacks his conviction by contending that the court lacked jurisdiction to convict
him, he was obligated to file a notice of appeal in conformance with Texas Rule of
Appellate Procedure 25.2(b)(3). Vidaurri v. State, 49 S.W.3d 880, 884 (Tex. Crim. App.
2001), citing Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998) (holding that
appeals of issues relating to the conviction are limited by Rule 40(b)(1), now Rule
25.2(b)(3)). This he did not do. Nor did he amend his notice prior to the time he filed his
brief. See TEX . R. APP . PROC . 25.2(d) (stating that one may amend his notice at any time
before the appellant’s brief is filed). Consequently, our jurisdiction to address the
contention posed by appellant has not been invoked.1
Accordingly, we dismiss this appeal for want of jurisdiction.
Per Curiam
Do Not Publish.
1
This court is aware that in a recent Court of Criminal Appeals decision, the court determined that
jurisdiction may be raised on appeal after probation is revoked. See Nix v. State, No. 793-00, slip op. at 4,
2001 WL 717453, at *2 (Tex. Crim. App. June 27, 2001). However, we do not read Nix as relieving the
appellant from having to comply with Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure.
2