Miguel Martinez Perez v. State ( 2002 )

                                   NUMBER 13-01-235-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

MIGUEL MARTINEZ PEREZ,                                          Appellant,

                                                   v.

THE STATE OF TEXAS,                                                       Appellee.

                   On appeal from the County Court at Law No. 2

                                  of Victoria County, Texas.

                                   O P I N I O N

          Before Chief Justice Valdez and Justices Yañez and Castillo

                                   Opinion by Justice Yañez

Pursuant to a plea bargain agreement, appellant, Miguel Martinez Perez, pleaded nolo contendere to the offense of interference with a public servant.^[1]  On February 26, 2001, the trial court found him guilty, and imposed a sentence of 180 days in county jail, suspended for one year, a fine of $350 plus court costs, and eighty hours of community service.  Appellant has filed a pro se brief challenging the voluntariness of his plea and the factual sufficiency of the evidence to support his conviction. We dismiss the appeal for want of jurisdiction.

                                             Procedural Background

On March 16, 2001, appellant filed a motion for new trial,^[2] contending his plea was involuntary because he did not understand the terms of the plea agreement.  Following a hearing on April 4, 2001, the trial court denied the motion.  On April 6, 2001, appellant filed a general notice of appeal, which failed to meet the jurisdictional requirements of Texas Rule of Appellate Procedure 25.2(b)(3).  See Tex. R. App. P. 25.2(b)(3).  Also on April 6, 2001, appellant=s court-appointed counsel filed a motion to withdraw.  On May 2, 2001, appellant filed a request for permission to appeal, and following a hearing the same day, the trial court signed a written order granting permission to appeal.  The trial court also granted appellant=s court-appointed counsel permission to withdraw from representing appellant and appointed new counsel to represent appellant.^[3]  Also on May 2, 2001, an amended notice of appeal was filed, noting the appointment of new counsel.  The amended notice also fails to meet the requirements of rule 25.2(b)(3); thus, although the record contains a written order granting appellant permission to appeal, the amended notice of appeal fails to so specify.  See Tex. R. App. P. 25.2(b)(3). 

Appellant=s court-appointed attorney filed an appellate brief in which he concluded that, after a review of the record and the related law, the appeal is frivolous and without merit. He has evaluated the record and has found no error that arguably supports an appeal. The brief thus meets the requirements of Anders v. California, 386 U.S. 738 (1967), and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); Lindsey v. State, 902 S.W.2d 9, 11 (Tex. App.BCorpus Christi 1995, no pet.).  Counsel certified that he furnished appellant with a copy of the brief and informed him of his right to review the record and file a pro se brief.  Appellant timely filed a pro se brief challenging the voluntariness of his plea and the factual sufficiency of the evidence to support his conviction. 

                                                      Jurisdiction                  

A threshold question is whether we have jurisdiction.  State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996) (A court may sua sponte review its subject matter jurisdiction.).

To invoke an appellate court's jurisdiction over an appeal, an appellant must give timely and proper notice of appeal.  White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). Appellant filed a timely general notice of appeal and an amended notice of appeal, neither of which complied with the requirements of rule 25.2(b)(3) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 25.2(b)(3).  Rule 25.2(b)(3) provides that when an appeal is from a judgment rendered on a defendant's plea of guilty or nolo contendere and the punishment assessed does not exceed the punishment recommended by the State and agreed to by the defendant, the notice of appeal must: (1) specify that the appeal is for a jurisdictional defect; (2) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (3) state that the trial court granted permission to appeal.  Id. The failure of an appellant to follow Rule 25.2(b)(3) deprives an appellate court of jurisdiction over the appeal.  Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002) (citing White, 61 S.W.3d at 428-29).  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.BHouston [1st Dist.] 2001, no pet.); Betz v. State, 36 S.W.3d 227, 228-29 (Tex. App.BHouston [14th Dist.] 2001, no pet.); Sherman v. State, 12 S.W.3d 489, 492 (Tex. App.BDallas 1999, no pet.).

Here, although the record reflects that the trial court granted appellant permission to appeal, neither the original notice nor the amended notice of appeal states that the trial court granted permission to appeal. Therefore, appellant=s notices of appeal do not comply in form with the requirements of rule 25.2(b)(3).  See Tex. R. App. P. 25.2(b)(3).

Because appellant's notice of appeal did not comply with the requirements of rule 25.2(b)(3), we are without jurisdiction to consider any of appellant's issues, including the voluntariness of the plea.  See Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001). The time for filing a proper notice of appeal has expired; thus, appellant may not file an amended notice of appeal to correct jurisdictional defects.  State v. Riewe, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000).

Absent appellate jurisdiction, we can take no action other than to dismiss the appeal.  See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).  Accordingly, we grant counsel=s motion to withdraw from representing the appellant and dismiss the appeal for want of jurisdiction.

LINDA REYNA YAÑEZ

Justice

Do not publish.  Tex. R. App. P. 47.3.

Opinion delivered and filed this the

29th day of August, 2002.

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^[1]See Tex. Pen. Code Ann. ' 38.15 (Vernon Supp. 2002).

^[2]See Tex. R. App. P. 26.2(a)(2) (providing notice of appeal must be filed within ninety days after sentence imposed or suspended in open court if defendant timely files motion for new trial).

^[3]On June 25, 2001, the trial court granted appellant=s second court-appointed counsel permission to withdraw because of appellant=s Arude, loud, defiant and dogmatic attitude.@  By the same order, the trial court appointed William ABill@ McManus as appellant=s third court-appointed counsel.  McManus filed an Anders brief, see Anders v. California, 386 U.S. 738 (1967), and has requested permission to withdraw as appellant=s counsel.