Earl Wesley Harmon v. State

• Court: Court of Appeals of Texas
• Decided: January 16, 2003
• Docket: 14-02-01306-CR
• Status: Published

Opinion

Dismissed and Opinion filed January 16, 2003

Dismissed and Opinion filed January 16, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01306-CR

EARL WESLEY HARMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 929,267

M E M O R A N D U M  O P I N I O N

Appellant entered a plea of guilty to carrying a firearm in a weapon-free school zone.  In accordance with the terms of a plea bargain agreement with the State, on November 8, 2002, the trial court deferred an adjudication of guilt and placed appellant on community supervision for six years.  Appellant filed a pro se notice of appeal from the order deferring adjudication of guilt.  See Manuel v. State, 994 S.W.2d 658, 661‑62 (Tex. Crim. App. 1999).  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).^[1] 

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).  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. 

The requirements of Rule 25.2(b)(3) apply to a defendant who plea bargains for deferred adjudication.  See Vidaurri v. State, 49 S.W.3d 880, 883 (Tex. Crim. App. 2001); Brown v. State, 943 S.W.2d 35, 41 (Tex. Crim. App. 1997); Watson v. State, 924 S.W.2d 711, 714‑15 (Tex. Crim. App. 1996).  Appellant filed a timely general notice of appeal that did not comply in substance with the requirements of Rule 25.2(b)(3).  The trial court specifically denied permission to appeal.  In addition, the record before this Court reflects no jurisdiction errors and contains no written pre-trial motions

Accordingly, we dismiss the appeal for want of jurisdiction. 

PER CURIAM

Judgment rendered and Opinion filed January 16, 2003.

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

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.