Lester Don Parks v. The State of Texas--Appeal from 42nd District Court of County

11th Court of Appeals

Eastland, Texas

Opinion

Lester Don Parks

Appellant

Vs. No. 11-02-00266-CR -- Appeal from Coleman County

State of Texas

Appellee

Lester Don Parks originally pleaded no contest to the charge of indecency with a child. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of appellant=s guilt, placed him on community supervision for 5 years, and assessed a $1,000 fine. Shortly thereafter, the State filed a motion to adjudicate appellant=s guilt. The trial court adjudicated appellant guilty of the offense and assessed his punishment at confinement for 15 years and a fine of $10,000. Appellant subsequently requested and received an out-of-time appeal.[1] We dismiss the appeal.

In his sole point of error, appellant complains that the trial court abused its discretion and violated his rights to due process and fundamental fairness by adjudicating appellant=s guilt even though he had not been apprised of the terms and conditions of his community supervision before the violations occurred.[2] However, to invoke an appellate court=s jurisdiction over an appeal, a timely and proper notice of appeal must be filed. Woods v. State, 68 S.W.3d 667, 669 (Tex.Cr.App.2002); White v. State, 61 S.W.3d 424, 428 (Tex.Cr.App.2001). Although appellant=s notice of appeal was timely pursuant to the order granting an out-of-time appeal, it was not proper. Appellant filed only a general notice of appeal that did not comply with the provisions of former TEX.R.APP.P. 25.2(b)(3).[3] Because appellant=s notice of appeal did not comply with Rule 25.2(b)(3) and because his point of error relates to his conviction, we have no jurisdiction to address the point of error. Woods v. State, supra; Vidaurri v. State, 49 S.W.3d 880 (Tex.Cr.App.2001); Watson v. State, 924 S.W.2d 711 (Tex.Cr.App.1996); see also White v. State, supra.

Moreover, points of error concerning the trial court=s determination to proceed with an adjudication of guilt may not be raised on appeal. TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5(b) (Vernon Supp. 2003); Connolly v. State, 983 S.W.2d 738 (Tex.Cr.App.1999); Olowosuko v. State, 826 S.W.2d 940 (Tex.Cr.App.1992). Because of the restrictions contained in Article 42.12, section 5(b), the issue raised by appellant in this appeal may only be challenged in an application for a post-conviction writ of habeas corpus.

Accordingly, the appeal is dismissed for want of jurisdiction.

PER CURIAM

February 27, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The United States District Court granted appellant=s petition for writ of habeas corpus on October 3, 2000. In re Lester Don Parks, Civil Action No. 6:98-CV-026-C. The Fifth Circuit Court of Appeals affirmed the trial court in 2002.

[2]We note that the record reflects that appellant had been apprised of the terms of the conditions of his probation prior to the date of the violations but that he had not received a certified copy from the district clerk prior to the date of the violations.

[3]At the time appellant filed his notice of appeal on August 12, 2002, the provisions of former TEX.R.APP.P. 25.2 applied and, thus, control this appeal.