Diaz, Jose Villarreal v. State ( 2002 )

Dismissed and Opinion filed May 30, 2002

Dismissed and Opinion filed May 30, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00427-CR

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JOSE VILLARREAL DIAZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 877,481

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of guilty to the offense of possession of at least 400 grams of cocaine with the intent to manufacture or deliver it.  In accordance with the terms of a plea bargain agreement with the State, on March 22, 2002, the trial court sentenced appellant to confinement for fifteen years in the Institutional Division of the Texas Department of Criminal Justice and assessed a $100 fine.  Because we have no jurisdiction over this appeal, we dismiss. 

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).  Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure 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.  Tex. R. App. P. 25.2(b)(3).  Not only must the specific notice of appeal recite the applicable extra-notice requirements, the record must substantiate the recitations in the notice of appeal and the issues raised in the brief must relate to the specific claims in the notice of appeal. Betz v. State, 36 S.W.3d 227, 228-29 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Sherman v. State, 12 S.W.3d 489, 492 (Tex. App.CDallas 1999, no pet.). Statements required by the rule to be in the notice of appeal must be true to confer jurisdiction; mere allegations are not sufficient.  Sherman, 12 S.W.3d at 492 (emphasis in the original).  Noncompliance, in either form or substance, results in a failure to properly invoke the appellate court=s jurisdiction over an appeal to which Rule 25.2(b)(3) is applicable.  Id.

Here, appellant=s notice of appeal recites the rule, but it does not specify the basis of his appeal.  The record reflects no jurisdictional errors, no rulings denying pre-trial motions, and the trial court specifically denied permission to appeal.  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).  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.2d 77, 83 (Tex. Crim. App. 2001) (holding that appellant who files general notice of appeal may not appeal voluntariness of negotiated plea). 

Moreover, as part of appellant=s plea bargain agreement, he signed a written waiver of his right to appeal.  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 his right to appeal, knew with certainty the punishment he would receive, and that he 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 he waived his right to appeal, it is Anot unfair to expect him 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 (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, we dismiss the appeal for want of jurisdiction.

PER CURIAM

Judgment rendered and Opinion filed May 30, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

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