IN THE
TENTH COURT OF APPEALS
No. 10-01-399-CR
GREGORY D. SWANKS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 82nd District Court
Robertson County, Texas
Trial Court # 01-02-16,956-CR
MEMORANDUM OPINION
Pursuant to a plea bargain, Gregory D. Swanks pled guilty to the felony offense of possession of a controlled substance, namely Phencyclidine, in an amount less than one gram and in a drug free zone. The trial court followed the plea bargain agreement, deferred an adjudication of guilt, and placed Swanks on community supervision for five years. On the same day, Swanks filed a general notice of appeal. We dismiss his appeal for want of jurisdiction.
Where a defendant pleads guilty or nolo contendere with the benefit of a plea bargain agreement and the punishment assessed does not exceed the agreed punishment, a defendant’s notice of appeal must comply with the extra-notice requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 25.2(b)(3); White v. State, No.123-01 (Tex. Crim. App. December 5, 2001); Craddock v. State, 32 S.W.3d 886, 887 (Tex. App.—Waco 2000, no pet.). In this situation, a general notice of appeal is insufficient to confer jurisdiction on a court of appeals. Id. This is also true if a defendant bargained for and received deferred adjudication. Watson v. State, 924 S.W.2d 711, 714-715 (Tex. Crim. App. 1996).
Swank’s general notice of appeal does not comply with Rule 25.2(b)(3). The time for perfecting his appeal has elapsed, and this jurisdictional defect cannot now be corrected. See Riewe v. State, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000); Craddock, 32 S.W.3d at 888. Accordingly, we do not have jurisdiction over this appeal and dismiss it for want of jurisdiction.
PER CURIAM
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Dismissed for want of jurisdiction
Opinion delivered and filed January 2, 2002
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[CR25]
Section 3.53, having been enacted by the legislature, cannot be trumped by Rule 215, a rule adopted by the Texas Supreme Court. Tex. Const. art. V, § 31 (Texas Supreme Court can promulgate any rule of civil procedure as long as it is "not inconsistent with the laws of the state").
I would hold that, although the court could strike Peggy's pleading as a sanction under Rule 215, it could not enter a default judgment against her without giving her notice of the hearing at which the court would hear evidence supporting the allegations in her husband's petition. As a non-answering defendant in a divorce case, she was entitled to have the court observe the rules that otherwise govern legal proceedings, which would include giving sufficient notice of the hearing at which the court would hear evidence regarding the divorce and the division of the community estate. See Bostwick, 11 S.W. at 180.
Moreover, I would hold that Peggy was entitled to a jury trial on any fact question related to either the divorce or property division based on her jury demand. The court did not strike her jury demand when it struck her pleading. Even though she stood in the position of a non-answering defendant, she was entitled to rely on her jury demand to gain a jury trial. See id.
For the reasons stated I would sustain the first three points, reverse the judgment, and remand the entire cause for trial.
BOB L. THOMAS
Chief Justice
Concurring opinion delivered and filed July 31, 1995
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