Kelly, Sedwick Demore v. The State of Texas--Appeal from 228th District Court of Harris County

Dismissed and Opinion filed August 29, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00825-CR

____________

SEDWICK DEMORE KELLY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 874,231

M E M O R A N D U M O P I N I O N

After a guilty plea, appellant was convicted of the offense of aggravated robbery and sentenced to forty-five years= confinement in the Texas Department of Criminal Justice--Institutional Division on November 30, 2001. An untimely motion for new trial was filed on January 4, 2002. Appellant=s notice of appeal was not filed until April 12, 2002.

A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a timely motion for new trial. See Tex. R. App. P. 26.2(a)(1). A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Under those circumstances it can take no action other than to dismiss the appeal. See id.

Moreover, the trial court sentenced appellant in accordance with the terms of a plea bargain agreement with the State. To invoke an appellate court=s jurisdiction over an appeal, an appellant must give timely and proper notice of appeal. White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). Appellant filed a general notice of appeal that did not comply with the requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 25.2(b)(3). Rule 25.2(b)(3) provides that when an appeal is from a judgment rendered on a defendant=s plea of guilty or nolo contendere and the punishment assessed does not exceed the punishment recommended by the State and agreed to by the defendant, the notice of appeal must: (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. Id. The time for filing a proper notice of appeal has expired; thus appellant may not file an amended notice of appeal to correct jurisdictional defects. State v. Riewe, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000). Because appellant=s notice of appeal did not comply with the requirements of Rule 25.2(b)(3), we are without jurisdiction to consider any of appellant=s issues, including the voluntariness of the plea. See Cooper v. State, 45 S.W.2d 77, 83 (Tex. Crim. App. 2001) (holding that appellant who files general notice of appeal may not appeal voluntariness of negotiated plea).

Accordingly, for the reasons stated above, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed August 29, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish Tex. R. App. P. 47.3(b).