Esau Rodriguez v. State

Opinion

NO. 07-02-0356-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

AUGUST 4, 2003 ______________________________

ESAU ACOSTA RODRIGUEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

NO. CR-99K-099; HON. H. BRYAN POFF, JR., PRESIDING _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

Appellant, Esau Acosta Rodriguez, appeals from an order 1) deferring his

adjudication of guilt for the crime of attempted sexual assault and 2) placing him on

community supervision. Furthermore, his two issues concern the matter of informing him

of his right to appeal once the juvenile court waived its jurisdiction over him. Specifically,

he contends that 1) the juvenile court erred in not advising him that he had a right to

appeal the order waiving jurisdiction, and 2) he received ineffective assistance of counsel

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 1998). because his attorney failed to advise him of the same right. We dismiss the appeal for

want of jurisdiction.

Background

Appellant was accused of having committed sexual assault at a time when he was

16 years old. After a hearing, the juvenile court waived its jurisdiction over him.

Thereafter, the State indicted him for the offense. Pursuant to a plea bargain, appellant

pled guilty to the lesser offense of attempted sexual assault. Thereafter, the trial court

deferred adjudicating him guilty of the offense and placed him on community supervision

for seven years. This was done in accordance with a plea bargain. Finally, appellant’s

guilt has yet to be adjudicated or his community supervision revoked.

Jurisdiction

Having pled guilty in accordance with a plea agreement and because the trial

court’s decision conformed to the agreement, appellant’s notice of appeal had to conform

to the dictates of Rule 25.2 of the Texas Rules of Appellate Procedure, as that rule existed

prior to January 1, 2003. Under that rule, appellant was required to state in his notice

either that 1) his appeal involved a jurisdictional defect, 2) the substance of his appeal was

raised by written motion and ruled on before trial, or 3) the trial court granted him

permission to appeal. Furthermore, the recitations must be truthful. Woods v. State, No.

2365-01, slip op. at 3, 2003 Tex. Crim. App. LEXIS 113 (Tex. Crim. App. June 18, 2003,

no pet. h.). For instance, if he avers in his notice of appeal that the issues involve

jurisdictional defects, then the issues mentioned in his brief must concern such defects.

Id.

2 Via a timely amended notice of appeal filed with this court, appellant simply alleged

that “his appeal is for a jurisdictional defect.” However, complaint about the effectiveness

of his counsel does not implicate jurisdictional matter. Id. at 4. Nor is the failure of the

juvenile court to admonish him of his right to appeal, assuming such a right existed, of the

type that affects the very power of the State to “bring the defendant in court to answer the

charge against him.” See Okigbo v. State, 960 S.W.2d 923, 925 n.1 (Tex. App.–Houston

[1st Dist.] 1998, pet. ref’d) (stating that “[j]urisdictional defects are defects that go to the

very power of the State to bring the defendant in court to answer the charge against him”).

Accordingly, appellant failed to satisfy the requirements of Rule of Appellate Procedure

25.2 and we, therefore, dismiss the appeal for lack of jurisdiction. Jones v. State, 42

S.W.3d 143, 147 (Tex. App.–Amarillo 2000, no pet.).

Brian Quinn Justice

Do not publish.