Corey Williams v. State ( 2003 )

                                  NUMBERS 13-01-193-CR

         13-01-194-CR

  13-01-195-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

___________________________________________________________________

COREY WILLIAMS,                                                               Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

___________________________________________________________________

                        On appeal from the 130th District Court

                                of Matagorda County, Texas.

__________________________________________________________________

                          MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Rodriguez and Dorsey^[1]  

                                Opinion by Justice Rodriguez

Appellant, Corey Williams, brings these appeals^[2] following the revocation of his community supervision.  By four issues, appellant contends: (1) his plea of guilty was not voluntarily given; (2) he was denied effective assistance of counsel; (3) he was denied a direct appeal; and (4) that this Court Aeither directly or indirectly fashioned a construction of rule 33.2 so as to achieve a desired reading that . . . is unconstitutionally vague . . . and . . . was accomplished through judicial enlargement.@  We affirm.

As this is a memorandum opinion not designated for publication, and the parties are familiar with the facts, we will not recite them here.  See Tex. R. App. P. 47.1, 47.2.

I.  Jurisdiction

We first consider whether we have jurisdiction to decide this appeal.

Because appellant pled guilty pursuant to plea agreements, and the punishment assessed did not exceed the punishment recommended by the State and agreed to by appellant, the notices of appeal must: (1) specify that each appeal is for a jurisdictional defect; (2) specify that the substance of each appeal was raised by written motion and ruled on before the trial court; or (3) state that the trial judge granted permission to appeal.  Tex. R. App. P. 25.2(b)(3) (Tex. 1997, amended 2003) (current version at Tex. R. App. P. 25.2(a)(2));^[3] see Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002).  However, it is not enough that the notices of appeal include recitations meeting the extra-notice requirements of the rule.  Flores v. State, 43 S.W.3d 628, 629 (Tex. App.BHouston [1st Dist.] 2001, no pet.); Sherman v. State, 12 S.W.3d 489, 492 (Tex. App.BDallas 1999, no pet.).  Appellant must, in good faith, comply in both form and substance with the extra-notice requirements, and the record must substantiate the specific allegations in the notice of appeal.  Flores, 43 S.W.3d at 629; Betz v. State, 36 S.W.3d 227, 228 (Tex. App.BHouston [14th Dist.] 2001, no pet.).  The failure of an appellant to properly follow rule 25.2(b)(3) deprives an appellate court of jurisdiction over the appeal.  Woods, 68 S.W.3d at 669.

Moreover, these requirements also apply to appeals from a judgment adjudicating guilt when the parties agreed to deferred adjudication probation pursuant to a plea bargain at the original proceeding on issues relating to his conviction.  See  id.  Because the issues raised by appellant all relate to his conviction it was necessary for appellant to comply with the notice requirements of rule 25.2(b)(3) to properly invoke our jurisdiction.  See id. (ARule 25.2(b)(3) controls an appeal, made either before or after an adjudication of guilt, by a defendant placed on deferred adjudication who challenges an issue relating to his conviction.@). 

In this instance, each notice of appeal provides the Aappeal is for jurisdictional, as well as nonjurisdictional [sic], defects; for substantive matters raised by written motion and ruled on before trial; and, the trial judge gave permission to appeal (to be given).@  However, the records in all three appeals reveal that appellant has failed to satisfy the substance requirements of rule 25.2(b)(3). First, nothing in the records indicate appellant challenged the trial court=s jurisdiction in the court below.  In other words, the records do not substantiate the lack of jurisdiction appellant intimates in his notice of appeal.  See Betz, 36 S.W.3d at 228.  Second, we do not find any written motions rendered against appellant that form the substance of this appeal.  See id.  Third, the records do not indicate that the trial court gave appellant permission to appeal.  Appellant appears to rely on a form stamped notation on the docket sheets as evidence that the trial court gave appellant permission to appeal.  The form stamped statement reads, in part,A[appellant] admonished that he has a right to appeal this case to the Court of Appeals, and if he is without funds then the Court will appoint counsel and a record will be furnished to perfect such appeal.@  However, we do not find this as evidence that the trial court gave appellant permission to appeal.  See Lowry v. State, 48 S.W.3d 309, 311 (Tex. App.BSan Antonio 2001, no pet.) (holding stamped notation on docket sheet stating defendant admonished on limitations of right to appeal is not evidence that trial court gave permission to appeal).  Thus, appellant=s notices of appeal do not comply with the substance requirements of rule 25.2(b)(3).  See Flores, 43 S.W.3d at 629.  Because appellant=s notices of appeal do not properly follow rule 25.2(b)(3), we do not have jurisdiction over these appeals.  See Tex. R. App. P. 25.2(b)(3) (Tex. 1997, amended 2003) (current version at Tex. R. App. P. 25.2(a)(2)); Woods, 68 S.W.3d at 669. 

Accordingly, we dismiss these appeals for want of jurisdiction.

Furthermore, based on our disposition of these appeals, we dismiss the State=s motion to dismiss the appeals for want of jurisdiction as moot.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 16th day of January, 2003.                                      

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^[1]Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2]Appellant filed one brief in these three separate appeals.  As a matter of judicial efficiency, we are incorporating appellant=s three appeals into this one opinion.

^[3]Because the amendments to the Texas Rules of Appellate Procedure became effective January 1, 2003, we will apply the rule that was in effect at the time of his notice on March 19, 2001.