Lavigne, Jerrod Ladon v. State ( 2002 )

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-02-00739-CR

01-02-00740-CR

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JERROD LADON LAVIGNE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause Nos. 885790 and 885789

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MEMORANDUM OPINION

Appellant pleaded guilty to possession of marihuana and to possession of cocaine. He also pleaded true to the allegations in two enhancement paragraphs in the marihuana indictment. Appellant entered into a plea bargain agreement with the State in which the State recommended that punishment be assessed at eight years confinement in each case. The trial court followed the terms of the plea agreement in assessing punishment. Appellant filed a timely notice of appeal that included both cause numbers. We dismiss the appeals for lack of jurisdiction.

In a plea-bargained felony case, the notice of appeal must comply with the extra-notice requirements of Rule 25.2(b)(3) of the Rules of Appellate Procedure or the appellate court lacks jurisdiction. ⁽¹⁾ See White v. State, 61 S.W.3d 424, 429 (Tex. Crim. App. 2001); Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001).

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 pro se notice of appeal is a form that includes the following:

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, both judgments reflect that the trial court did not grant permission to appeal. In addition, it is apparent from the record that the trial court had jurisdiction in both cases. A pretrial motion to suppress was filed in each case, but these were never ruled on by the trial court. 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 in each case if the trial court followed the plea bargain agreement. 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 Hedges, Jennings, and Keyes.

Do not publish.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

1.

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).