Ybarra, Richard v. State

Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

RICHARD YBARRA,

) No. 08-02-00129-CR

)

Appellant,

) Appeal from

)

v.

) 109th District Court

)

THE STATE OF TEXAS,

) of Winkler County, Texas

)

Appellee.

) (TC# 3812)

MEMORANDUM OPINION

Pending before the Court is the State's motion to dismiss this appeal for lack of jurisdiction. We grant the State's motion and dismiss the appeal for want of jurisdiction.

FACTUAL SUMMARY

The record before us reflects that on February 15, 1995, Richard Ybarra pleaded guilty to engaging in organized criminal activity. In accordance with a plea bargain, the court found that the evidence substantiated Appellant's guilt but deferred making an adjudication of guilt, and the court placed Appellant on community supervision for ten years. The State later filed a motion to adjudicate guilt. Appellant entered a plea of true in exchange for the State's recommendation that Appellant's punishment be assessed at imprisonment for ten years. The trial court adjudicated Appellant guilty and assessed punishment in accordance with the plea bargain. Appellant, acting pro se, filed a general notice of appeal.

JURISDICTION

Appellant's court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). A copy of counsel's brief has been delivered to Appellant, and Appellant has been advised of his right to examine the appellate record and file a pro se brief. No pro se brief has been filed.

In response to the Anders brief, the State has filed a motion to dismiss for lack of jurisdiction. Appellate jurisdiction is invoked by giving timely and proper notice of appeal. Woods v. State, 68 S.W.3d 667, 669 (Tex.Crim.App. 2002); White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 2001). 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. Woods, 68 S.W.3d at 669; White, 61 S.W.3d at 428. To invoke this court's jurisdiction over an appeal from a negotiated, felony guilty plea, a notice of appeal must conform to the mandatory notice requirements of rule 25.2(b)(3). White, 61 S.W.3d at 429; Tex.R.App.P. 25.2(b)(3). Rule 25.2(b)(3) requires the notice of appeal to: (1) specify that the appeal is for a jurisdictional defect; (2) specify that 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. Tex.R.App.P. 25.2(b)(3). The failure of an appellant to follow Rule 25.2(b)(3) deprives an appellate court of jurisdiction over the appeal. Woods, 68 S.W.3d at 669. Rule 25.2(b)(3)'s notice provisions apply to defendants who are placed on deferred adjudication community supervision where the defendant raises an issue on appeal relating to his conviction. Woods, 68 S.W.3d at 669.

Appellant has not raised any issues on appeal either related or unrelated to his conviction. Having failed to satisfy the notice provisions of Rule 25.2(b)(3), Appellant's notice of appeal fails to confer jurisdiction on this Court. Accordingly, the State's motion to dismiss is granted and the appeal is hereby dismissed for lack of jurisdiction.

January 29, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)