TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00685-CR
Vernon Paul Love, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. 2010287, HONORABLE FRANK W. BRYAN, JR., JUDGE PRESIDING
After his pretrial motion to suppress evidence was overruled, appellant Vernon Paul Love
pleaded guilty to possessing less than one gram of cocaine. See Tex. Health & Safety Code Ann. '
481.115 (West Supp. 2002). The district court adjudged appellant guilty and, pursuant to a plea bargain
agreement, sentenced him to one year in state jail. Appellant now contends the court erred by overruling his
motion to suppress. In a motion to dismiss, the State argues that appellant failed to perfect his appeal.
A defendant who pleads guilty or no contest does not by so doing forfeit the right to appeal
a claim of error in the overruling of a motion to suppress. Young v. State, 8 S.W.3d 656, 666-67 (Tex.
Crim. App. 2000). If, however, a defendant pleads guilty or no contest to a felony and the punishment
assessed does not exceed that agreed to in a plea bargain, the motion to suppress must have been in writing
and ruled on before trial (unless the defendant obtains the trial court=s permission to appeal). Id. at 667
(citing Tex. R. App. P. 25.2(b)(3)); see Cooper v. State, 45 S.W.3d 77, 79 (Tex. Crim. App. 2001). In
addition, the notice of appeal in such a case must state that the substance of the appeal was raised by
written motion and ruled on before trial (or that the trial court granted permission to appeal). Tex. R. App.
P. 25.2(b)(3). A notice of appeal that does not comply with rule 25.2(b)(3) does not confer jurisdiction on
the appellate court. Whitt v. State, 45 S.W.3d 274, 275 (Tex. App.CAustin 2001, no pet.). After the
time for perfecting an appeal has expired, this defect cannot be cured by amending the notice. State v.
Riewe, 13 S.W.3d 408, 412-14 (Tex. Crim. App. 2000).
Although the substance of appellant=s appeal was raised by written motion and ruled on
before trial, the notice of appeal does not say this. Instead, it states that appellant Aplead guilty, while
reserving his right to appeal.@ This statement accurately describes the plea agreement detailed for the court
at the time appellant entered his plea, which did not require appellant to waive his right to appeal. See
Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (promise to waive appeal as part of plea
bargain is binding if court follows agreed punishment recommendation). But while appellant was careful to
preserve his substantive right to appeal the overruling of his motion to suppress, he tripped over the extra
procedural hurdle that rule 25.2(b)(3) erects to perfect that right. Because appellant=s notice of appeal does
not contain the necessary recital, we grant the State=s motion to dismiss the appeal for want of jurisdiction.1
1
It is likely that appellant can reinstate his right to appeal by filing a post-conviction application
for habeas corpus complaining of his attorney=s failure to comply with rule 25.2(b)(3). See Tex. Code
Crim. Proc. Ann. art. 11.07, ' 3 (West Supp. 2002).
2
The appeal is dismissed.
__________________________________________
David Puryear, Justice
Before Justices Kidd, Patterson and Puryear
Dismissed for Want of Jurisdiction
Filed: June 13, 2002
Do Not Publish
3