Stacey Chavful v. State of Texas--Appeal from 187th Judicial District Court of Bexar County

Nos. 04-00-00666-CR, 04-00-00667-CR, 04-00-00668-CR, 04-00-00669-CR,
04-00-00670-CR, 04-00-00671-CR, and 04-00-00672-CR
Stacey CHAVFUL,
Appellant
v.
The STATE of Texas,
Appellee

From the 187th Judicial District Court, Bexar County, Texas
Trial Court Nos. 98-CR-2406, 98-CR-2407, 98-CR-3148, 98-CR-3149
98-CR-3150, 98-CR-3151, and 98-CR-3152
Honorable Raymond Angelini, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 2, 2001

DISMISSED FOR LACK OF JURISDICTION

Stacey Chavful pled guilty to one charge of robbery, four charges of robbery enhanced as a repeat offender, one charge of aggravated robbery, and one charge of aggravated robbery enhanced as a repeat offender. Pursuant to a plea bargain agreement, the trial court sentenced Chavful to twenty-two years imprisonment in six of the cases and to twenty years in one case, to run concurrently. Chavful filed a notice of appeal stating his desire to "appeal on matters raised by written motion filed prior to trial."

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, the defendant's notice of appeal must (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3); Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000). A timely notice of appeal complying with Rule 25.2(b)(3) is necessary to confer jurisdiction on this court. See State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). Moreover, this court's jurisdiction is limited to the matters specified in the rule, and the limitation on appeal applies to errors occurring before and after the guilty plea. See Cooper v. State, No. 1100-99, slip op. at 6-7, 2001 WL 321579, at *1 (Tex. Crim App. Apr. 4, 2001) (concluding Rule 25.2(b)(3) limits appeal in a plea bargain case to those grounds specified in the Rule); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App.1994) (former rule limited appeal for nonjurisdictional defects occurring before or after the guilty plea).

In an appeal to which Rule 25.2(b)(3) applies, the appellant must comply with Rule 25.2(b)(3) both in form and in substance. Where the record does not affirmatively substantiate the recitation in the notice of appeal, this court's jurisdiction is not properly invoked and we have no jurisdiction over the appeal. Betz v. State, 36 S.W.3d 227, 228 (Tex. App.-Houston [14th Dist.] 2001, no pet. h.); Sherman v. State, 12 S.W.3d 489, 492 (Tex. App.-Dallas 1999, no pet.).

Rule 25.2(b)(3) applies to Chavful's appeals. Although the notice of appeal states Chavful's desire to appeal a matter raised in a pretrial motion, it does not state the motion was ruled on prior to trial. Moreover, the record does not reflect the trial court ruled on any written motions prior to trial. And Chavful's brief raises only the voluntariness of his plea and trial counsel's alleged ineffectiveness in advising him to enter into the plea bargain. We do not have jurisdiction to review these issues. See Cooper, 2001 WL 321579. Accordingly, we ordered Chavful to show cause why his appeals should not be dismissed for lack of jurisdiction.

Chavful's appellate counsel did not respond to our order. However, Chavful filed a pro se response in which he requests leave of court to brief additional points of error, alleging he was denied effective assistance of counsel in (1) preparing a motion for new trial based on his incompetency and the involuntariness of his plea and (2) preparing a notice of appeal. He also requests sixty days to prepare a response explaining why this court has jurisdiction over those issues.

Chavful is represented by appellate counsel who filed a brief on his behalf. In Texas, appellants do not have a right to hybrid representation. Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981). Moreover, we do not have jurisdiction to consider the ineffective assistance points Chavful wishes to raise. See Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App.1994); Luna v. State, 985 S.W.2d 128, 130 (Tex. App.-San Antonio 1998, pet. ref'd). We therefore deny Chavful's motions and dismiss these appeals for lack of jurisdiction.

PER CURIAM

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