JEREMY SCHMIDT v. THE STATE OF TEXAS--Appeal from 197th District Court of Cameron County

Schmidt v. SOT NUMBER 13-01-00396-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JEREMY SCHMIDT, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 197th District Court of Cameron County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Opinion by Justice Hinojosa

Pursuant to a plea agreement, appellant, Jeremy Schmidt, pleaded guilty to the offense of capital murder. (1) The trial court found appellant guilty and, in accordance with the plea agreement, assessed his punishment at life imprisonment. This appeal ensued. In three issues, appellant contends that: (1) statements used against him were the result of an illegal arrest, (2) his trial counsel's failure to successfully challenge such statements amounted to ineffective assistance of counsel, and (3) the trial court's failure to enter findings as to the voluntariness of his confession warrants a new trial. We dismiss this appeal for want of jurisdiction.

Because this case arises from a plea agreement, the first question that confronts us is whether we have jurisdiction to review the claims before us. Yarbrough v. State, 57 S.W.3d 611, 615 (Tex. App.-Texarkana 2001, pet. ref'd). To invoke an appellate court's jurisdiction, the appellant must give timely and proper notice of appeal. White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). If an appellate court's jurisdiction is not properly invoked, the court's power to act is "as absent as if it did not exist." Id. Accordingly, dismissal of an issue, or the entire matter, is appropriate if the form of the notice of appeal is improper. Id.

When a defendant pleads guilty or nolo contendere, and the punishment assessed does not exceed that recommended by the prosecutor and agreed to by the defendant, the notice of appeal must state that the appeal is for a jurisdictional defect, or that the substance of the appeal was raised by a written motion and ruled on before trial, or that the trial court granted him permission to appeal. Tex. R. App. P. 25.2(b)(3); Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002); Cooper v. State, 45 S.W.3d 77, 79 (Tex. Crim. App. 2001). Furthermore, the court of criminal appeals has held that claims of ineffective assistance of counsel are non-jurisdictional. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994) (citing Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981)).

In this case, the plea agreement provided that in exchange for appellant's plea of guilty to the offense of capital murder, the State would request life imprisonment. The trial court assessed appellant's punishment at life imprisonment. Therefore, the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by appellant.

Appellant filed a general notice of appeal; he did not allege any of the additional notice requirements of rule 25.2(b)(3). We conclude the failure of appellant to follow Rule 25.2(b)(3) deprives this Court of jurisdiction over this appeal. Woods, 68 S.W.3d at 669; Whitt v. State, 45 S.W.3d 274, 275 (Tex. App.-Austin 2001, no pet.).

This appeal is dismissed for want of jurisdiction.

 

FEDERICO G. HINOJOSA

Justice

 

Do not publish. Tex. R. App. P. 47.3.

 

Opinion delivered and filed this the

25th day of July, 2002.

1. See Tex. Pen. Code Ann. 19.03 (Vernon 1994). Appellant was indicted for capital murder for intentionally causing the death of Aurora Tamez during the course of committing or attempting to commit the offense of burglary of a habitation.