Hernandez, Oscar A. 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

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NO. 14-02-00826-CR

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OSCAR A. HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 887,517

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

Appellant entered a plea of guilty to the offense of aggravated assault. In accordance with the terms of a plea bargain agreement with the State, on November 7, 2001, the trial court sentenced appellant to confinement for two years in the Institutional Division of the Texas Department of Criminal Justice. Because we have no jurisdiction over this appeal, we dismiss.

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=s general notice of appeal 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). The trial court also included in the record in this appeal a signed letter stating the court did not give appellant permission to appeal and did not rule on any motions prior to accepting the plea. Therefore, we are without jurisdiction to consider any of appellant=s issues.

Moreover, as part of the plea bargain agreement, appellant signed a written waiver of his right to appeal. The trial court followed the plea bargain agreement in assessing punishment. Despite having waived the right to appeal, appellant filed a notice of appeal. Appellant chose to enter into an agreement that included a waiver of the right to appeal. Appellant was informed of his right to appeal, knew with certainty the punishment he would receive, and that he could withdraw his plea if the trial court did not act in accordance with the plea agreement. As appellant was fully aware of the consequences when he waived his right to appeal, it is Anot unfair to expect him to live with those consequences now.@ Alzarka v. State, 60 S.W.3d 203, 206 (Tex. App.BHouston [14th Dist.] July 26, 2001, pet. granted) (quotingMabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 2547-48 (1984)). See also Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000); Buck v. State, 45 S.W.3d 275, 278 (Tex. App.CHouston [1st Dist.] 2001, no pet.).

Accordingly, we dismiss the appeal.

PER CURIAM

Judgment rendered and Opinion filed August 29, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex.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