FREDERICK O'NEAL SCOTT v. THE STATE OF TEXAS--Appeal from 24th District Court of De Witt County

  NUMBER 13-01-512-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

FREDERICK O=NEAL SCOTT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of DeWitt County, Texas.

OPINION

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Ya ez

Appellant, Frederick O=Neal Scott, pled guilty to the third degree felony offense of deadly conduct[1] on September 1, 1998. The trial court deferred a finding of guilt according to the plea bargain and appellant was sentenced to seven years community supervision with a $2,000 fine. On June 28, 2001, upon the State=s motion to adjudicate guilt and petition for revocation of probated sentence, the trial court heard the evidence and entered a finding of guilty with a further finding that a deadly weapon was used in the commission of the offense. The trial court sentenced appellant to ten years confinement. By two points of error, appellant contends: (1) the court did not have jurisdiction over the appellant; and (2) the trial court erred, at the hearing to adjudicate guilt, in failing to submit the issue of competency before a jury. We dismiss the appeal for want of jurisdiction.

Appellant=s general notice of appeal failed to adhere to the requirements of appellate rule 25.2(b)(3). Tex. R. App. P. 25.2(b)(3) (providing that in appeal from negotiated plea, notice must specify that appeal is for jurisdictional defect, that substance of appeal was raised by written motion and ruled on before trial, or that trial court granted permission to appeal).

Appellate Jurisdiction

Jurisdiction refers to the power of a court to hear and decide a case. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Appellate jurisdiction is invoked with a timely and proper notice of appeal. White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001); Lemmons v. State, 818 S.W.2d 58, 60 (Tex. Crim. App. 1991). Dismissal of an issue or the entire matter is appropriate unless the form of the notice of appeal is proper to perfect appeal as to the issue or matter. White, 61 S.W.3d at 428.

Rule 25.2 of the rules of appellate procedure governing perfection of an appeal in a criminal case provides, in part:

25.2 Criminal Cases.

(a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal. In a death penalty case, however, it is unnecessary to file a notice of appeal.

(b) Form and Sufficiency of Notice.

(1) Notice must be given in writing and filed with the trial court clerk.

(2) Notice is sufficient if it shows the party=s desire to appeal from the judgment or other appealable order, and, if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01.

(3) But if the appeal is from a judgment rendered on the defendant=s plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice 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(a), (b) (emphasis added).

As a procedural matter, to invoke an appellate court=s jurisdiction over an appeal from a negotiated guilty plea, a notice of appeal must comply with the mandatory notice requirements of rule 25.2(b)(3). Tex. R. App. P. 25.2(b)(3); White, 61 S.W.3d at 429. Furthermore, the requirements apply to appeals from a judgment adjudicating guilt when the parties agreed to deferred adjudication community supervision according to a plea bargain at the original plea proceeding, unless the appellant raises issues unrelated to his conviction. Tex. R. App. P. 25.2(b)(3); Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002); Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).

The notice of appeal filed by appellant was defective as it fails to specify any of the three conditions that would grant this Court jurisdiction. Because appellant=s notice of appeal does not satisfy rule 25.2(b)(3), his notice fails to confer jurisdiction on this Court. Absent appellate jurisdiction, we can take no action other than to dismiss this appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Accordingly, we dismiss the appeal for want of jurisdiction. Tex. R. App. P. 43.2(f).

LINDA REYNA YA EZ

Justice

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

Opinion delivered and filed this the

22nd day of August, 2002.

1Tex. Pen. Code Ann. ' 22.05 (Vernon 1994).