George Vernon Martinez v. State of Texas--Appeal from 249th District Court of Somervell County

IN THE

TENTH COURT OF APPEALS

No. 10-00-254-CR

GEORGE VERNON MARTINEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Somervell County, Texas

Trial Court # 249-00390

O P I N I O N

George Vernon Martinez pled guilty pursuant to a plea bargain to sexual assault of a child. The trial court followed the plea bargain by deferring an adjudication of guilt and placing Martinez on community supervision for ten years. Martinez filed a general notice of appeal. After the time for perfecting his notice of appeal had elapsed, Martinez filed an amended notice of appeal alleging, among other things, a jurisdictional defect. We dismiss the appeal for want of jurisdiction.

Jurisdiction

Where a defendant pleads guilty or nolo contendere with the benefit of a plea bargain agreement and the punishment assessed does not exceed the agreed punishment, a defendant s notice of appeal must comply with the extra-notice requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure. Tex. R. App. 25.2(b)(3). In this situation, a general notice of appeal is insufficient to confer jurisdiction on a court of appeals. Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994); Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994) (both construing former appellate rule 40(b)(1)). This is also true if a defendant bargained for and received deferred adjudication. Watson v. State, 924 S.W.2d 711, 714-715 (Tex. Crim. App. 1996).

We have construed Rule 25.2(b)(3) in the same manner; that is, compliance with the rule is jurisdictional. See Tressler v. State, 986 S.W.2d 381 (Tex. App. Waco 1999, no pet.). Other courts of appeals have also accepted this construction. See Robinson v. State, 24 S.W.3d 438 (Tex. App. Houston [1st Dist.] 2000, no pet.); Sherman v. State, 12 S.W.3d 487 (Tex. App. Dallas 1999, no pet.); Villanueva v. State, 977 S.W.2d 693 (Tex. App. Fort Worth 1998, no pet.). Thus, if a notice of appeal does not comply with Rule 25.2(b)(3), we do not have jurisdiction over the appeal. Tressler, 986 S.W.2d at 382. So well established is the jurisdictional nature of the requirement of Rule 25.2(b)(3) that we ceased publishing cases dismissed for failure to comply with the rule. See eg. Anderson v. State, No. 10-99-00192-CR (Tex. App. Waco August 2, 2000)(not designated for publication); Steffy v. State, No. 10-98-00-265-CR (Tex. App. Waco April 21, 1999)(not designated for publication).

Merits of the Case

Defendants have frequently attempted to bypass the specific extra-notice requirements by utilizing another rule to give the courts jurisdiction where it had not otherwise been properly invoked. Just as many times, the Court of Criminal Appeals has stated that a court of appeals cannot use another rule to create jurisdiction where none exists. Thus, the Court of Criminal Appeals has made it clear that the courts of appeals cannot use other rules such as the new Rule 2, former Rule 2(b) or former Rule 83 to consider the merits of an appeal where the notice of appeal was untimely. See Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996). The Court has also held that the courts of appeals cannot use former Rule 83 to permit an out of time amendment of a notice of appeal. Jones v. State, 796 S.W.2d 183 (Tex. Crim. App. 1990).

In 1997, a provision was added to the new rules of appellate procedure that allows for amendments of a notice of appeal. Rule 25.2(d) provides:

An amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court at any time before the appellant s brief is filed. The amended notice is subject to being struck for cause on the motion of any party affected by the amended notice. After the appellant s brief is filed, the notice may be amended only on leave of the appellate court and on such terms as the court may prescribe.

Tex. R. App. P. 25.2(d). However, the Court of Criminal Appeals has recently construed this provision and reaffirmed that prior case law prevents a court of appeals from using another appellate rule to create jurisdiction where none existed. State v. Riewe, 13 S.W.3d 408, 413 (Tex. Crim. App. 2000). The Court stated that it does not matter which rule a court of appeals tries to use, former rules 2(b) or 83 or the current rule 25.2(d); the court cannot create jurisdiction without a proper notice of appeal. Id. The point is that, once jurisdiction is lost, the court of appeals lacks the power to invoke any rule to thereafter obtain jurisdiction. Id. Although the Riewe appeal involved the State s compliance with its own extra-notice requirements, it appears that the Court wanted to settle the entire issue by stating, any amendments made pursuant to Rule 25.2(d) cannot be jurisdictional amendments. Id. at 413-414. The Court has merely re-affirmed the method of invoking the jurisdiction of appellate courts in plea bargained cases; it has not abridged, modified, or enlarged a substantive right of the defendant. See eg. Villanueva, 977 S.W.2d at 696, n.7.

Conclusion

Martinez s general notice of appeal did not comply with Rule 25.2(b)(3). Even though Martinez filed an amended notice of appeal, the time for perfecting his appeal has elapsed and this jurisdictional defect cannot now be corrected. See Riewe, 13 S.W.3d at 413-14. Accordingly, we do not have jurisdiction over this appeal and dismiss it for want of jurisdiction.

TOM GRAY

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

(Justice Vance dissenting)

Appeal dismissed

Opinion delivered and filed November 8, 2000

Do not publish