Lambert, Esther v. State ( 2002 )

Dismissed and Opinion filed July 11, 2002

Dismissed and Opinion filed July 11, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00665-CR

____________

ESTHER LAMBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 904,388

M E M O R A N D U M  O P I N I O N

After a guilty plea, appellant was convicted of the offense of driving while intoxicated and sentenced on March 7, 2002, to six years in the Texas Department of Criminal Justice, Institutional Division, probated, and a $500 fine.  The judgment also required appellant, in conformance with the plea agreement, to perform 300 hours of community service, and to pay restitution of $26,003.49.  Appellant filed a timely motion for new trial on April 3, 2002.  Appellant=s notice of appeal was not filed until June 20, 2002. Appellant did not file a motion for extension of time to file the notice of appeal.

A defendant=s notice of appeal must be filed within ninety days after sentence is imposed when the defendant has filed a motion for new trial.  See Tex. R. App. P. 26.2(a)(2).  A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction.  See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).  If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal.  Under those circumstances it can take no action other than to dismiss the appeal.  See id.

There is an additional reason for dismissing this appeal.  Appellant pled guilty and the trial court followed the plea bargain agreement in assessing punishment.  Despite having waived the right to appeal, appellant filed a notice of appeal. Appellant chose to enter into an agreement that included a waiver of the right to appeal.  Appellant was informed of her right to appeal, knew with certainty the punishment she would receive, and that she could withdraw his plea if the trial court did not act in accordance with the plea agreement.  As appellant was fully aware of the consequences when she waived her right to appeal, it is Anot unfair to expect [her] to live with those consequences now.@  Alzarka v. State, 60 S.W.3d 203, 206 (Tex. App.BHouston [14th Dist.] July 26, 2001, pet. granted) (quoting Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 2547-48, 81 L. Ed. 2d 437 (1984)).  See also Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000); Buck v. State, 45 S.W.3d 275, 278 (Tex. App.CHouston [1st Dist.] 2001, no pet.). 

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed July 11, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish ‑ Tex. R. App. P. 47.3(b).