Casares, Richard v. The State of Texas--Appeal from 185th District Court of Harris County

Dismissed and Opinion filed October 24, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-01065-CR

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RICHARD CASARES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 916,801

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 burglary of a habitation with the intent to commit theft and sentenced to 25 years= confinement in the Texas Department of Criminal Justice--Institutional Division on August 16, 2002. No motion for new trial was filed. Appellant=s notice of appeal was not filed until September 27, 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 into a plea bargain agreement with the State and the trial court sentenced appellant in accordance with that agreement. 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).

Finally, as part of the plea bargain agreement, appellant signed a written waiver of his right to appeal. As we stated, appellant pled guilty and 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, 81 L. Ed. 2d 437 (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, for the reasons stated above, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed October 24, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish Tex.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