Mark A. Pardo v. State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-00-00748-CR
Mark Anthony PARDO,
Appellant
v.
The STATE of Texas,
Appellee

From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 1997-CR-3676B
Honorable Mark R. Luitjen, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: April 30, 2001

DISMISSED FOR LACK OF JURISDICTION

Mark Anthony Pardo pled nolo contendere to aggravated robbery. Pursuant to a plea bargain agreement in which the State agreed to recommend deferred adjudication, the trial court deferred adjudication and placed Pardo on community supervision for ten years. The State later moved to adjudicate guilt. After a hearing, the trial court adjudicated Pardo guilty and sentenced him to twenty-five years imprisonment. Pardo timely filed a general notice of appeal.

When a judgment is rendered on the defendant's plea of guilty or nolo contendere pursuant to a plea bargain in a felony case, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a timely notice of appeal that complies with Texas Rule of Appellate Procedure 25.2(b)(3) must be filed to confer jurisdiction on this court. Tex. R. App. P. 25.2(b)(3); see State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). Rule 25.2(b)(3) requires the notice of appeal to state (1) the appeal is for a jurisdictional defect, (2) the substance of the appeal was raised by written motion and ruled on before trial, or (3) the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3); see Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000). The requirements of Rule 25.2(b)(3) apply when a judgment adjudicating guilt results from a plea bargain in which the defendant agreed to plead guilty or nolo contendere in exchange for the State's recommendation that adjudication be deferred. See Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996). Moreover, an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty, "may not raise on appeal contentions of error in the adjudication process." Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp. 2000).

Because Rule 25.2(b)(3) applies to this appeal and Pardo's general notice of appeal did not comply with the rule, we ordered him to show cause why the appeal should not be dismissed for lack of jurisdiction. Pardo responded by stating he is appealing (1) violations of his state and federal constitutional rights to due process and due course of law during the hearing on the motion to adjudicate and (2) the constitutionality of the limitation on the right to appeal contained in article 42.12 5(b) of the Code of Criminal Procedure. Pardo contends that because these issues involve fundamental rights, they should not be subject to Rule 25.2(b)(3) nor precluded by article 42.12 5(b). We disagree.

When Rule 25.2(b)(3) applies to an appeal, compliance with its terms is mandatory, even if the issue sought to be appealed is of constitutional dimension. See Cooper v. State, No. 1100-99, 2001 WL 321579 (Tex. Crim. App. April 4, 2001) (voluntariness of a plea-bargained guilty plea in a felony case may not be appealed absent compliance with Rule 25.2(b)(3)); Riewe, 13 S.W.2d at 413 ("[e]ven a claimed deprivation of constitutional rights cannot confer jurisdiction upon a court where none exists."). Moreover, the prohibition in article 42.12 5(b) against a direct appeal of the determination to adjudicate precludes our assertion of jurisdiction to consider the points Pardo seeks to raise. See Tex. Code Crim. Proc. Ann. art. 42.12 (b)(5); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (court of appeals should have dismissed point of error contending right to counsel was violated at hearing on motion to adjudicate); Clark v. State, 997 S.W.2d 365, 367 (Tex. App.-Dallas 1999, no pet.) (no jurisdiction over claim appellant received no notice of the claimed violations of deferred adjudication probation); Trevino v. State, 962 S.W.2d 176, 177 (Tex. App.-Fort Worth 1998, pet. ref'd) (no jurisdiction to consider constitutionality of 42.12 5(b) on direct appeal); Keller v. State, 854 S.W.2d 224, 225 (Tex. App.-Beaumont 1993, pet. ref'd) (same). Because Pardo seeks review only of issues he may not appeal and his notice of appeal does not comply with Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure, we dismiss this appeal for lack of jurisdiction.

PER CURIAM

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