Allen v. State

OPINION

SAM J. DAY, Justice.

Appellant Tremayne L. Allen appeals from the trial court’s judgment adjudicating his guilt for the offense of possession of less than one gram of cocaine, a state jail felony. We dismiss the appeal for want of jurisdiction.

*415Background

On May 19, 2000, pursuant to a plea bargain agreement, appellant pleaded guilty to the offense, and the trial court placed him on deferred adjudication community supervision for two years. Subsequently, the State filed a petition to proceed to an adjudication of guilt, alleging appellant had violated certain conditions of his community supervision. On August 8, 2001, also pursuant to a plea bargain agreement, appellant pleaded true to paragraph one of the State’s petition, and the trial court adjudicated appellant guilty of the offense and assessed his punishment at six months’ confinement in a state jail facility. Following the adjudication proceeding, appellant filed a pro se notice of appeal complaining of ineffective assistance of counsel at the proceeding adjudicating his guilt.

Because appellant’s notice of appeal did not appear to invoke our appellate jurisdiction, we sent a letter to appellant’s counsel directing her to submit a letter brief identifying the issues or points to be raised on appeal and explain why those issues or points warrant continuation of the appeal. No letter brief was received within the time allowed.

Appellate Jurisdiction

Jurisdiction concerns the power of a court to hear and determine a case. 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 by giving timely and proper notice of appeal. White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App.2001); Riewe, 13 S.W.3d at 410; 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. 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). Tex.R.App. P. 25.2(b)(3); White, 61 S.W.3d at 429. These requirements apply equally to appeals from a judgment adjudicating guilt when the parties agreed to deferred adjudication community supervision pursuant to a plea bargain agreement at the original plea proceeding and the appellant is later adjudicated guilty, unless he raises an issue or issues unrelated to his conviction. Woods v. State, 68 S.W.3d 667, 669 (Tex.Crim.App.2002); Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex.Crim.App.2001).

Because appellant’s notice of appeal does not satisfy rule 25.2(b)(3) and the appeal does not raise an issue unrelated to his conviction, his notice fails to confer jurisdiction on this court. Absent appellate jurisdiction, we can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998); Olivo, 918 S.W.2d at 523-25. Accordingly, we dismiss the appeal for want of jurisdiction. See Tex.R.App. P. 43.2(f).

DAUPHINOT, J. filed a dissenting opinion.