McShan, James Thomas v. The State of Texas--Appeal from 183rd District Court of Harris County

Dismissed and Opinion filed September 5, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00889-CR

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JAMES THOMAS McSHAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 901,458

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 felony driving while intoxicated and sentenced to confinement for twenty-five years in the Institutional Division of the Texas Department of Criminal Justice on July 1, 2002. No motion for new trial was filed. Appellant=s notice of appeal was not filed until August 22, 2002.

A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a 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, appellant entered a plea of guilty pursuant to an agreed recommendation for punishment, and the trial court followed the plea bargain agreement in assessing punishment. As part of the agreement, appellant signed a written waiver of his right to appeal. 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.@ Alzarkav. State, 60 S.W.3d 203, 206 (Tex. App.BHouston [14th Dist.] July 26, 2001, pet. granted) (quoting Mabry 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, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed September 5, 2002.

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

Do Not Publish Tex.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