Bailey, Jesse Marion v. State ( 2002 )

In The

Court of Appeals

For The

First District of Texas

____________

NOS. 01-02-00854-CR

01-02-00855-CR

____________

JESSE MARION BAILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 911475 and 911375

---

MEMORANDUM OPINION

Appellant, Jesse Marion Bailey, pleaded guilty to burglary of a habitation with intent to commit theft and unauthorized use of a motor vehicle. Appellant entered into a plea bargain agreement with the State in which the State recommended that punishment be assessed at five years confinement in each case. The trial court followed the terms of the plea agreement in assessing punishment. Appellant filed timely notice of appeal. We dismiss the appeals for lack of jurisdiction.

When a defendant in a criminal case pleads guilty or no contest after having reached a plea bargain agreement with the State, and the trial judge sentences the defendant in accordance with the plea bargain agreement, the notice of appeal must comply with Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure. The rule states that, in such a case, "the notice must: (A) specify that the appeal is for a jurisdictional defect; (B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (C) state that the trial court granted permission to appeal." Tex. R. App. P. 25.2(b)(3).

However, it is not enough that the notice of appeal include recitations meeting the extra-notice requirements of the rule. Such recitations must be supported by the record and be true. Appellant must, in good faith, comply in both form and substance with the extra-notice requirements. Noncompliance, either in form or in substance, will result in a failure to properly invoke this Court's jurisdiction over an appeal to which the rule applies. Flores v. State, 43 S.W.3d 628, 629 (Tex. App.--Houston [1st Dist.] 2001, no pet.); Betz v. State, 36 S.W.3d 227, 228-29 (Tex. App.--Houston [14th Dist.] 2001, no pet.); Sherman v. State, 12 S.W.3d 489, 492 (Tex. App.--Dallas 1999, no pet.).

Appellant's notice of appeal, filed in both cause numbers, includes the following recitations:

The Defendant further alleges that if this appeal is from a judgment rendered on a plea of guilty or nolo contendere that the trial court granted permission to appeal; and that if the trial court did not exceed the prosecutor's recommended punishment, that this appeal is for a jurisdictional defect; and that the substance of the appeal was raised by written motion and ruled on before trial.

However, according to the clerk's records, no pretrial motions were filed. In addition, the trial court judgments were stamped, "Appeal waived. No permission to appeal granted." Finally, it is apparent from the records that the trial court had jurisdiction in each case. Therefore, appellant's notice of appeal does not comply in substance with the requirements of Rule 25.2(b)(3).

We also note that appellant waived his right to appeal if the trial court followed the plea bargain agreement, which he did. See Buck v. State, 45 S.W.3d 275, 278 (Tex. App.--Houston [1st Dist.] 2001, no pet.).

We dismiss the appeals for lack of jurisdiction.

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.