Hollins, Kevin George v. State

Dismissed and Opinion filed July 11, 2002

Dismissed and Opinion filed July 11, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00622-CR

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KELVIN GEORGE HOLLINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 905,357

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 more than four grams, but less than 200 grams, of cocaine with intent to deliver.  On April 9, 2002, in accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant to confinement in the the Institutional Division of the Texas Department of Criminal Justice for twenty-five years.  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).  A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial.  See Tex. R. App. P. 26.2(a)(1).  On June 6, 2002, appellant filed an untimely pro se general notice of appeal that did not comply 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 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). 

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.  See 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.). Here, the trial court denied appellant permission to appeal.  The record does not reflect any jurisdictional errors or rulings on written pre-trial motions.  Because appellant=s notice of appeal was untimely and 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 the plea bargain agreement, appellant signed a written waiver of his right to 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.CHouston [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 July 11, 2002.

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

Do Not Publish C Tex.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