Osvaldo N. Chapa v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

04-02-00309-CR

Memorandum Opinion

No. 04-02-00309-CR

Osvaldo CHAPA,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CR-0590

Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen A. Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 12, 2003

AFFIRMED

Appellant Osvaldo Chapa was charged with the felony offenses of aggravated sexual assault on a child and indecency with a child. Chapa filed a motion to suppress. Following a pre-trial hearing, the trial judge overruled Chapa's motion. Chapa then entered into a negotiated plea with the State, pleading nolo contendre to the charge of aggravated sexual assault on a child and was sentenced to twenty years imprisonment.

Two days later, Chapa filed a general notice of appeal. After the time for filing the notice of appeal had expired, but prior to the filing of his brief, Chapa filed an amended notice which purported to contain the notice of appeal requirements of Texas Rule of Appellate Procedure 25.2(b)(3).

In order to appeal from a judgment rendered on a defendant's plea of nolo contendre, where the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must specify one of three things: a jurisdictional defect, the trial court's permission to appeal, or the substance of the appeal was raised by written motion and ruled on before trial. Tex. R. App. P. 25.2(b)(3).Texas Rule of Appellate Procedure 25.2(d) allows a defendant to file an amended notice of appeal at any time before the defendant's brief is filed, giving the appellate court jurisdiction over the appeal. Bayless v. State, 91 S.W.3d 801, 805-06 (Tex. Crim. App. 2002); Tex. R. App. P. 25.2(d).

Although Chapa's amended notice of appeal indicates that he is appealing under one of the Rule 25.2(b)(3) exceptions, the notice fails to indicate which of the three categories his appeal belongs. Chapa has thus waived his right to appeal under the Appellate Rules. See Tex. R. App. P. 25.2(b)(3). Therefore, the judgment of the trial court is affirmed.

Paul W. Green, Justice

Do Not Publish