Joseph Almanza v. State of Texas

• Court: Court of Appeals of Texas
• Decided: February 27, 2002
• Docket: 04-01-00132-CR
• Status: Published

Opinion

No. 04-01-00132-CR Joseph ALMANZA, Appellant v. The STATE of Texas, Appellee From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2000-CR-4534 Honorable Pat Priest, Judge Presiding

PER CURIAM

Sitting: Alma L. López, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: February 27, 2002

DISMISSED FOR LACK OF JURISDICTION

Joseph Almanza pled nolo contendere to a felony and was sentenced in accordance with the terms of his plea bargain agreement. Almanza filed a notice of appeal from the trial court's judgment, in which he stated the appeal is for a jurisdictional defect.

To invoke the court's jurisdiction over this appeal, Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure requires that the notice of appeal state the appeal is from a jurisdictional defect, the substance of the appeal was raised by written motion and ruled on before trial, or the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3); Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); see State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). Appellant must comply with Rule 25.2(b)(3) both in form and in substance. Where the record does not affirmatively substantiate the recitation in the notice of appeal, this court's jurisdiction is not properly invoked and we have no jurisdiction over the appeal. Betz v. State, 36 S.W.3d 227, 228 (Tex. App.-Houston [14th Dist.] 2001, no pet. h.); Sherman v. State, 12 S.W.3d 489, 492 (Tex. App.-Dallas 1999, no pet.).

The record affirmatively reflects the trial court had jurisdiction over the cause and the appellant. Because the recitation in Almanza's notice of appeal is not substantiated by the record, the requirements of Rule 25.2(b)(3) are not met and this court does not have jurisdiction over the appeal. See White v. State No. 123-01, 2001 WL 1539153 (Tex. Crim. App. Dec. 5, 2001); Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001). Likewise, we do not have jurisdiction to consider the motion to withdraw filed by Almanza's court-appointed counsel. We therefore dismiss the appeal and the motion to withdraw for lack of jurisdiction.

Do not publish