Finister, Chadrick Jay v. The State of Texas--Appeal from 176th District Court of Harris County

Affirmed and Memorandum Opinion filed April 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01154-CR

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CHADRICK JAY FINISTER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 813,969

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

Appellant Chadrick Jay Finister appeals the trial court s judgment finding him guilty of felony possession of a controlled substance. Under two points of error, he alleges the three year sentence imposed by the court constitutes cruel and unusual punishment. The State argues appellant s general notice of appeal failed to invoke this Court s jurisdiction. We affirm the judgment.

Background

On September 29, 1999, pursuant to a plea bargain agreement accepted by the court, appellant pleaded guilty to the offense of possession of a controlled substance, and was placed on deferred adjudication community supervision for five years. The State subsequently filed a motion to adjudicate guilt, alleging appellant had violated certain conditions of his community supervision. On October 18, 2001, also pursuant to a plea bargain agreement, appellant pleaded true to the State s motion. The trial court adjudicated him guilty of the offense and assessed punishment at three years confinement with a $500 fine, as per the agreement. After the adjudication proceeding, appellant filed a timely pro se notice of appeal complaining of incorrect teaching. Upon abatement by this Court, the trial court appointed counsel to represent appellant on appeal. Appellant s counsel filed an out-of-time amended notice of appeal generally alleging grounds under Texas Rules of Appellate Procedure Rule 25.2(b)(3). In two points of error, appellant complains his plea-bargained three-year sentence constitutes cruel and unusual punishment.

Analysis

A. Jurisdiction

Because the State contends we are without jurisdiction, we address that issue first. 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). Dismissal of an issue or the entire matter is appropriate unless the notice of appeal properly perfects the appeal as to the issue or matter. Id. To invoke this Court s jurisdiction over an appeal from a negotiated felony guilty plea, a notice of appeal must meet the mandatory notice requirements[1] of Texas Rules of Appellate Procedure Rule 25.2(b)(3); White at 429. The provisions of that rule apply to appellants who are placed on deferred adjudication probation and who raise an issue relating to the conviction. Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002). Under Rule 25.2(b)(3), 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. Here, appellant s pro se notice of appeal failed to raise any Rule 25.2(b)(3) jurisdictional grounds. Although his subsequent out-of-time amended notice of appeal did allege Rule 25.2(b)(3) grounds, such grounds are not supported by the record or argued in appellant s brief, and thus the amended notice of appeal does not comply with Rule 25.2(b)(3). See Bayless v. State, 91 S.W.3d 801, 802 (Tex. Crim. App. 2002). Not only must the notice of appeal include a recitation of applicable notice requirements, the record must substantiate recitations of jurisdiction in the notice of appeal and issues raised in the brief must relate to specific claims alleged in the notice of appeal. Betz v. State, 36 S.W.3d 227, 228 29 (Tex. App. Houston [14th Dist.] 2001, no pet.).

Nevertheless, a defendant need not comply with the specific notice provisions of Rule 25.2(b)(3) if his claim on appeal is not a challenge to his conviction. Woods, 68 S.W.3d at 669. In Vidaurri v. State, 49 S.W.3d 880 (Tex. Crim. App. 2001), the Texas Court of Criminal Appeals allowed an appeal to go forward from a guilty plea as the defendant challenged the process by which he was sentenced, not the conviction itself. Unclear is whether following a negotiated guilty plea accepted by the court, an appellant must comply with Rule 25.2(b)(3) in order to appeal alleged errors in assessment of punishment, unrelated to the sentencing process. Specifically, Vidaurri and Woods do not address whether Rule 25.2(b)(3) governs complaints of cruel and unusual punishment under such circumstances. At least one court of appeals has interpreted Vidaurri to allow such claims. Foy v. State, No. 01-00-00914-CR, 2002 WL 31682219 (Tex. App. Houston [1st Dist.] 2002, no pet.) (not designated for publication) (holding appellate court had jurisdiction over claim of cruel and unusual punishment arising from deferred adjudication plea bargaining agreement, as claim related to punishment, not conviction.). Under similar facts, this Court has addressed the merits of such claim, but without discussion of jurisdictional issues. Sompract v. State, No. 14-02-00271-CR, 2003 WL 297716 (Tex. App. Houston [14th Dist.] 2003, no pet. h.).

We find no clear authority for the State s proposition that assessment of punishment arguments relate to the conviction and are governed by Rule 25.2(b)(3). As the Texas Court of Criminal Appeals has not ruled that allegations of cruel and unusual punishment arising from a deferred adjudication plea bargain agreement are issues relating to a conviction, we construe our jurisdiction to review appellant s claims as invoked by his general notice of appeal.

B. Cruel and Unusual Punishment

In his two points of error, appellant argues his plea-bargained three-year sentence constitutes cruel and unusual punishment, in violation of his state and federal constitutional rights. Appellant did not raise this argument with the trial court, and thus has failed to preserve the issue for our review on appeal. Our law is well-settled that almost every right, constitutional and statutory, may be waived by the failure to object. Solis v. State, 945 S.W.2d 300, 301 (Tex. App. Houston [1st Dist.] 1997, pet. ref d). Specifically, the constitutional right to be free from cruel and unusual punishment may be waived. Stewart v. LaGrand, 526 U.S. 115, 119 (1999); Solis, 945 S.W.2d at 301. Because appellant did not object to the sentence as violating his constitutional rights at the time it was announced, he has waived both points of error. See Sompract, 2003 WL 297716, at *2 (Tex. App. Houston [14th Dist.] 2003, no pet. h.) (not designated for publication). This is not the type of error that can be raised the first time on appeal, therefore appellant has waived any possible error. See Saldano v. State, 70 S.W.3d 873, 887 90 (Tex. Crim. App. 2002).

Even assuming his argument had been properly preserved for our review, appellant has not shown how his sentence constitutes cruel and unusual punishment. Appellant acknowledges his sentence falls within the statutory range for his offense, such that his punishment is not cruel or unusual within the meaning of federal constitutional provisions. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). While he contends that under the unusual and unique facts of this case the resulting punishment was unconstitutional, he has failed to inform us what is unique about this case or cite any cases supporting his argument that the sentence was cruel and unusual under the circumstances. See Aguilar v. State, No. 01-97-00482-CR, 1999 WL 33484 (Tex. App. Houston [1st Dist.] 1999, pet. ref d) (not designated for publication).

Conclusion

Appellant has waived his arguments of cruel and unusual punishment on appeal. His two points of error are overruled, and the judgment is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed April 24, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] The notice of appeal in this case was filed prior to the amendments to the Texas Rules of Appellate Procedure effective January 1, 2003.