COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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CRYSTAL WILDER, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-02-00357-CR Appeal from the 384th District Court of El Paso County, Texas (TC#20020D01274) |
MEMORANDUM OPINION
Crystal Wilder pleaded guilty to theft. She was convicted and sentenced to two years= confinement in accordance with a plea agreement. Wilder=s court-appointed counsel has filed a brief in which she has concluded that the appeal is wholly frivolous and without merit.[1] Wilder has filed a pro se brief, raising two issues. The State has filed a motion to dismiss, arguing that we lack jurisdiction over the appeal. Because we agree with the State, we will dismiss the appeal.
Discussion
Under the version of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure that is applicable to this appeal, a defendant who was sentenced in accordance with a plea agreement must include an Aextra-notice recitation@ in her notice of appeal. See Woods v. State, 108 S.W.3d 314, 315-16 (Tex. Crim. App. 2003). The notice of appeal must specify that: (1) the appeal is for a jurisdictional defect; (2) the substance of the appeal was raised by written motion and ruled on before trial; or (3) the trial court granted permission to appeal. See id. To confer jurisdiction on the appellate court, the extra-notice recitation must be true and supported by the record. Id. at 316. Moreover, the issues raised on appeal must be encompassed within the extra-notice recitation. Id. at 314, 316.
In this case, the notice of appeal facially complies with the extra-notice requirement by stating that the trial court gave permission to appeal by appointing appellate counsel. This recitation, however, is not supported by the record. The reporter=s record contains the following statement by the trial court: AI want the record to reflect that by virtue of appointing [counsel], I am not giving her permission, my consent, to appeal these cases.@
Because the trial court did not give Wilder permission to appeal, we lack jurisdiction over this appeal.[2] Accordingly, the State=s motion to dismiss is granted, and the appeal is dismissed.
SUSAN LARSEN, Justice
January 15, 2004
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)
[1]The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493, by advancing a contention that might arguably support the appeal. 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).
[2]We note that the issues raised in counsel=s brief and in the pro se brief do not fall within the other two categories of issues mentioned in Rule 25.2(b)(3). The issues raised by counsel and by Wilder relate to the voluntariness of the plea. Plea-bargaining defendants may not raise the voluntariness of the plea on direct appeal. Woods, 108 S.W.3d at 316 n.6; Cooper v. State, 45 S.W.3d 77, 77 (Tex. Crim. App. 2001).