CALISTRO HERRERA v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

NUMBER 13-00-534-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

 
CALISTRO HERRERA , Appellant,
v.

THE STATE OF TEXAS, Appellee.

 
On appeal from the 347th District Court

of Nueces County, Texas.

 
O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Chief Justice Valdez

By a single issue, appellant, Calistro Herrera, contends his plea of nolo contendere was involuntarily made because it was the result of ineffective assistance of counsel. We dismiss for want of jurisdiction.

A. BACKGROUND

On July 27, 1999, the appellant, Calistro Herrera, appeared before the 347th District Court of Nueces County, and pleaded nolo contendrere to the charge of indecency with a child. (1) In accordance with a written plea agreement, entered into between the State and the appellant, the trial court sentenced appellant to fifteen years imprisonment. Thereafter, appellant perfected this appeal by filing a handwritten letter with the clerk of the trial court, wherein he expresses a desire to appeal his conviction. In his brief, appellant complains that he was denied effective assistance of counsel, and that as a result, his plea was not voluntarily.

B. JURISDICTION

Before we reach the merits of this case, we must address this Court's jurisdiction to consider this appeal. Because appellant appeals from a judgment rendered on a plea of nolo contendere pursuant to a plea bargain agreement, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, we must consider the threshold issue of whether appellant's notice of appeal is sufficient to confer jurisdiction on this Court.

The record shows that appellant filed a handwritten letter that generally expresses his desire to appeal from his conviction in cause number 99-CR-1363-H. This letter was properly construed as a notice of appeal. See Tex. R. App. P. 25.2(b)(2); see also Massey v. State, 759 S.W.2d 18, 19 (Tex. App.-Texarkana 1988, no pet.) However, Rule 25.2(b)(3) of Texas Rules of Appellate Procedure provides that following an agreed plea of guilty or nolo contendere, and where the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice of appeal must specify that (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) state that the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(3). Appellant failed to comply with the specific notice requirements of Rule 25.2(b)(3).

We have previously held that this Court has jurisdiction to hear a challenge to the voluntariness of a guilty plea, even if the appellant files a general notice of appeal. See Marshall v. State, 28 S.W.3d 634, 637 (Tex. App.--Corpus Christi 2000, no pet.); Perez v. State, 28 S.W.3d 627, 632 (Tex. App.--Corpus Christi 2000, no pet.) (holding that this doctrine, first espoused in Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996), survived the 1997 amendments to the rules of appellate procedure). In its brief, the State acknowledges these decisions; however, after the filing of the briefs in this cause, the Texas Court of Criminal Appeals issued its opinion in Cooper v. State, wherein the court held that when an appellant fails to comply with the extra-notice requirements of Rule 25.2(b), the court of appeals lacks jurisdiction to consider the appeal, even for voluntariness issues. See Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001) (holding that Flowersdoctrine did not survive the amendment of the rules of appellate procedure and that Rule 25.2(b) does not permit the voluntariness of a plea to be raised on appeal, unless the trial court has granted permission for an appeal).

Accordingly, we conclude that this Court does not have jurisdiction to address appellant's claims of ineffective assistance of counsel, despite appellant's contention that his guilty plea was involuntarily made.

We dismiss this appeal for want of jurisdiction

______________________________

ROGELIO VALDEZ

Chief Justice

Do not publish .

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 9th day of August, 2001.

1. Tex. Pen. Code 21.11(a)(1)(Vernon Supp. 2001).