JEFFREY CHANDLER v. THE STATE OF TEXAS--Appeal from 107th District Court of Cameron County

  NUMBER 13-01-357-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTIBEDINBURG

JEFFERY CHANDLER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 107th District Court of Cameron County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Ya ez

By four points of error, Jeffery Chandler appeals his sentence of eight years confinement for felony theft,[1] enhanced to a felony of the second degree.[2] We dismiss the appeal for want of jurisdiction.

On April 30, 2001, the State offered appellant a plea agreement wherein appellant would serve a term of eight years in jail, running concurrently with any other sentence, and other misdemeanor offenses would be dismissed. That same day, appellant signed the plea, and the trial court entered judgment in accordance with the agreement. Appellant=s pro se notice of appeal was received on May 15, and he was appointed an appellate attorney on May 17.

Appellant advances four points of error concerning article 32 A. 02 of the Texas Code of Criminal Procedure, known as the Speedy Trial Act. However, we cannot rule on this case because 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. See 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. See 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. See 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 that 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). See Tex. R. App. P. 25.2(b)(3); White, 61 S.W.3d at 429. Assuming, without holding, that appellant=s invocation of a speedy trial violation is the equivalent of arguing a jurisdictional defect in the trial court, this contention (which, if specified in the notice of appeal, would satisfy condition (A) of rule 25.2(b)(3)), is argued only in the subsequent appellant=s brief and as such is not properly before this Court. See Tex. R. App. P. 25.2; White, 61 S.W.3d at 429 (when an appellant raises a jurisdictional defect on appeal from a bargained plea of guilty or no contest, rule 25.2(b)(3)(A) states that the notice of appeal must now specify that the appeal is for that purpose). 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. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).[3]

Furthermore, even if appellant=s contentions were properly before this Court, his speedy trial arguments are supported by an Ainvalid@ statute, as article 32 A. 02 is unconstitutional and cannot provide the basis for any relief. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (en banc). The Act provides, in part:

Art. 32 A. 02 Time Limitations

Sec. 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:

(1) 180 days of the commencement of a criminal action if the defendant is accused of a felony; . . .

Sec. 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded: . . .

(9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial;

Tex. Code Crim. Proc. Ann. art. 32 A. 02 (Vernon 1989). However, the court of criminal appeals has stated:

Because we are not aware of any other constitutional provision expressly granting the [l]egislature the power to control a prosecutor=s preparation for trial, we must conclude that the [l]egislature, by providing for such a right in the instant case, violated the separation of powers doctrine [of the Texas Constitution]. . . . Therefore, we hold that Chapter 32 A. 02, in its entirety, and Article 28.061 . . . are rendered void.

Meshell v. State, 739 S.W.2d 246, 257 (Tex. Crim. App. 1987). Appellant contends: (1) the indictment should have been set aside because the State was not ready for trial within 180 days after the indictment, pursuant to article 32 A. 02; (2) the State failed to use due diligence to secure appellant for trial, pursuant to article 32 A. 02; (3) he did not knowingly waive his right to argue article 32 A. 02; and (4) trial counsel=s failure to argue article 32 A. 02 rendered counsel ineffective.

In Texas, the right to a speedy trial is governed by the state and federal constitutions, not article 32 A. 02. See U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Harris, 827 S.W.2d at 956; Moreno v. State, 987 S.W.2d 195, 198 (Tex. App.BCorpus Christi 1999, pet. ref=d). Texas courts apply the Barker balancing test to determine whether a defendant has been denied his state speedy trial right. See Moreno, 987 S.W.2d at 198; see also Barker v. Wingo, 407 U.S. 514, 529-30 (1972). This test uses the following factors to weigh the conduct of the prosecution and the accused: (1) the length of the delay; (2) the reason for the delay; (3) the defendant=s assertion of his speedy trial right; and (4) prejudice to the defendant from the delay. See Barker, 407 U.S. at 529-30. These factors are Aconsidered together in a sensitive balancing process.@ Moreno, 987 S.W.2d at 198 (citing Turner v. State, 545 S.W.2d 133, 139 (Tex. Crim. App. 1976)). Yet, appellant=s brief fails to address any of these factors, or raise any claim under either the federal or state constitutional speedy trial clauses.[4] Consequently, we could not force appellant=s contentions through the Barker analysis even if the notice of appeal had conferred jurisdiction on this Court. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record@).

Accordingly, we dismiss the appeal for want of jurisdiction. See 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

31st day of October, 2002.

[1]Tex. Pen. Code Ann. '31.03(e)(4)(A) (Vernon 1994 & Supp. 2002).

[2]Tex. Pen. Code Ann. '12.33(a) (Vernon 1994 & Supp. 2002).

[3]Moreover, appellant=s counsel had thirteen days to correct the defects and file an amended notice of appeal. In criminal cases, the defendant=s notice of appeal must be filed within thirty days after the sentence is imposed. Tex. R. App. P. 26.2(a)(1). Here, the sentence was imposed on April 30, appellant=s deficient pro se notice of appeal was filed on May 15, and appellate counsel was appointed for him on May 17. Appellant=s counsel could have amended the notice of appeal to comply with rule 25.2(b)(3); instead, the only notice of appeal filed by appellant is defective as it fails to specify any of the three conditions that would grant this Court jurisdiction.

[4]In his first point of error, appellant argues that the indictment should have been set aside because the State was not ready for trial within 180 days after the indictment, as is required by article 32 A. 02, section 1(1). However, in holding article 32 A. 02 unconstitutional, the court of criminal appeals in Meshell rejected the effectiveness of this time limitation. See Meshell v. State, 739 S.W.2d 246, 257 (Tex. Crim. App. 1987).

In his second point of error, appellant argues that the State failed to use due diligence to secure appellant for trial as set forth in article 32 A. 02. However, the Adue diligence@ referred to in section 4(9) is in regards to computation of time and not a burden upon the State. Tex. Code Crim. Proc. Ann. art. 32 A. 02, '4(9) (Vernon 1989). Points of error three and four are similarly without merit due to the Ainvalid@status of article 32 A. 02. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (en banc).