Vernon Paul Love v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2002
• Docket: 03-01-00685-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00685-CR

Vernon Paul Love, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT NO. 2010287, HONORABLE FRANK W. BRYAN, JR., JUDGE PRESIDING

After his pretrial motion to suppress evidence was overruled, appellant Vernon Paul Love

pleaded guilty to possessing less than one gram of cocaine. See Tex. Health & Safety Code Ann. '

481.115 (West Supp. 2002). The district court adjudged appellant guilty and, pursuant to a plea bargain

agreement, sentenced him to one year in state jail. Appellant now contends the court erred by overruling his

motion to suppress. In a motion to dismiss, the State argues that appellant failed to perfect his appeal.

A defendant who pleads guilty or no contest does not by so doing forfeit the right to appeal

a claim of error in the overruling of a motion to suppress. Young v. State, 8 S.W.3d 656, 666-67 (Tex.

Crim. App. 2000). If, however, a defendant pleads guilty or no contest to a felony and the punishment

assessed does not exceed that agreed to in a plea bargain, the motion to suppress must have been in writing

and ruled on before trial (unless the defendant obtains the trial court=s permission to appeal). Id. at 667

(citing Tex. R. App. P. 25.2(b)(3)); see Cooper v. State, 45 S.W.3d 77, 79 (Tex. Crim. App. 2001). In addition, the notice of appeal in such a case must state that the substance of the appeal was raised by

written motion and ruled on before trial (or that the trial court granted permission to appeal). Tex. R. App.

P. 25.2(b)(3). A notice of appeal that does not comply with rule 25.2(b)(3) does not confer jurisdiction on

the appellate court. Whitt v. State, 45 S.W.3d 274, 275 (Tex. App.CAustin 2001, no pet.). After the

time for perfecting an appeal has expired, this defect cannot be cured by amending the notice. State v.

Riewe, 13 S.W.3d 408, 412-14 (Tex. Crim. App. 2000).

Although the substance of appellant=s appeal was raised by written motion and ruled on

before trial, the notice of appeal does not say this. Instead, it states that appellant Aplead guilty, while

reserving his right to appeal.@ This statement accurately describes the plea agreement detailed for the court

at the time appellant entered his plea, which did not require appellant to waive his right to appeal. See

Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (promise to waive appeal as part of plea

bargain is binding if court follows agreed punishment recommendation). But while appellant was careful to

preserve his substantive right to appeal the overruling of his motion to suppress, he tripped over the extra

procedural hurdle that rule 25.2(b)(3) erects to perfect that right. Because appellant=s notice of appeal does

not contain the necessary recital, we grant the State=s motion to dismiss the appeal for want of jurisdiction.1

1 It is likely that appellant can reinstate his right to appeal by filing a post-conviction application for habeas corpus complaining of his attorney=s failure to comply with rule 25.2(b)(3). See Tex. Code Crim. Proc. Ann. art. 11.07, ' 3 (West Supp. 2002).

2 The appeal is dismissed.

__________________________________________

David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Dismissed for Want of Jurisdiction

Filed: June 13, 2002

Do Not Publish