Robles, Walter Alfonso v. State

Dismissed and Opinion filed February 20, 2003

Dismissed and Opinion filed February 20, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00088-CR

NO. 14-03-00089-CR

NO. 14-03-00090-CR

NO. 14-03-00091-CR

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WALTER ALFONSO ROBLES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 875,336, 875,595, 878,210, & 878,211

M E M O R A N D U M   O P I N I O N

Appellant entered guilty pleas to two offenses of aggravated robbery and two offenses of aggravated sexual assault.  In accordance with the terms of plea bargain agreements with the State, on November 14, 2002, the trial court sentenced appellant to confinement for life in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal in each case.^[1]   Because we have no jurisdiction over these appeals, 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.  Id.  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).

The rule does not mean, however, that an appellate court=s jurisdiction is properly invoked by the filing of a specific notice of appeal complying only in form with the extra-notice requirements of Rule 25.2(b)(3). Betz v. State, 36 S.W.3d 227, 228 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Sherman v. State, 12 S.W.3d 489, 492 (Tex. App.CDallas 1999, no pet.).  An appellant must, in good faith, comply in both form and substance with the extra-notice requirements of the rule.  Id.; see Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim. App. 1999) (stating that appellant=s general notice of appeal could not truthfully state that trial court had given permission to appeal).  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.  See Betz, 36 S.W.3d at 228-29; Sherman, 12 S.W.3d at 492.  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).

In this case, the records contain no written motions ruled on before trial, and they reflect no jurisdictional defects.  In addition, the trial court specifically denied appellant permission to appeal in each case.  Accordingly, appellant=s notice of appeal does not comply in substance with Rule 25.2(b).

Moreover, appellant waived his right to appeal.  As part of the plea bargain agreement, appellant signed a written waiver of his right to appeal, 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 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.@  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 these appeals for want of jurisdiction. 

PER CURIAM

Judgment rendered and Opinion filed February 20, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).         

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^[1]  The notice of appeal in this case was filed prior to the amendments to the Texas Rules of Appellate Procedure effective January 1, 2003.