Chavez, Jesus v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JESUS CHAVEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-02-00008-CR

Appeal from the

346th District Court

of El Paso County, Texas

(TC# 980D08790)

MEMORANDUM OPINION

Jesus Chavez appeals the revocation of his probation for the offense of driving while intoxicated. We dismiss the appeal for lack of jurisdiction.

Facts

On April 29, 1999, Chavez pleaded guilty to driving while intoxicated as a third- degree felony in cause number 980D08790. He was sentenced to ten years= imprisonment which was probated to ten years= community supervision after an initial 180 days of incarceration. On February 28, 2001, Chavez was arrested for driving while intoxicated (Athe August DWI@). The State filed its motion to revoke Chavez=s probation on August 7, 2001.

On November 28, 2001, the trial court held a hearing on the motion to revoke. Chavez pleaded true to the allegation that he violated the terms of his probation by driving while intoxicated, by failing to pay his fine and court costs, and by failing to do his community service. The trial court accepted Chavez=s plea of true. Chavez was then sentenced to seven years in prison.

The trial court then took up the adjudication of the August DWI. Chavez pleaded guilty. The State recommended imposition of a seven-year sentence to run concurrent with the revocation sentence. The court followed that recommendation, but reduced the entire sentence to six years after another plea of leniency from counsel, and no opposition from the State.

Appellate jurisdiction is invoked by giving timely and proper notice of appeal. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000); Jones v. State, 42 S.W.3d 143, 147 (Tex. App.--Amarillo 2000, no pet.). The Texas Rules of Appellate Procedure provide the procedures which must be followed to ensure the proper invocation of this Court=s jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). A notice of appeal that does not comply with the rules thus deprives the court of jurisdiction, such that the appeal must be dismissed for lack of subject matter jurisdiction. State v. Roberts, 940 S.W.2d 655, 657 n.2 (Tex. Crim. App. 1996); Olivo, 918 S.W.2d at 523.

Chavez=s Notice of Appeal was filed when he was without benefit of counsel. Tex. R. App. P. 9.1(b) requires parties not represented by counsel to sign all documents for filing. Although Chavez did not sign the Notice of Appeal, he did sign the ACertificate of Mailing@ that accompanied the Notice of Appeal. We therefore find his Notice of Appeal Asigned@ within the meaning of Rule 9.1(b). Tex. R. App. P. 9.1(b).

Although Chavez=s Notice of Appeal passes muster under Rule 9.1, we perceive another issue concerning our authority to adjudicate this appeal. Roberts, 940 S.W.2d at 657 (if not raised by parties Court must address the question of jurisdiction sua sponte). Specifically, we are concerned that Chavez=s Notice of Appeal does not comply with Tex. R. App. P. 25.2.

In this case, Chavez pleaded guilty to the underlying offense that led to the revocation proceeding, the revocation itself, and the August DWI. The sentence he received was less than that recommended by the prosecutor. Under such circumstances, Tex. R. App. P. 25.2(b)(3) requires the notice of appeal: (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). Chavez=s Notice of Appeal fails to state any Rule 25.2 grounds for the appeal of a criminal case, nor does the record reflect that any of these requirements are otherwise satisfied. Indeed, the clerk=s record reflects that on January 3, 2002, the trial court denied Chavez permission to appeal.

For these reasons, we find that Chavez did not properly invoke this Court=s jurisdiction. His appeal is therefore dismissed for lack of jurisdiction.

SUSAN LARSEN, Justice

January 9, 2003

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)