
Opinion issued March 13, 2003











In The
Court of Appeals
For The
First District of Texas




NO. 01-01-01229-CR




MARC ANTHONY CASTANEDA, Appellant

V.

THE STATE OF TEXAS, Appellee 




On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 794607




O P I N I O N
          Appellant, Marc Antony Castaneda, challenges his adjudication of guilt for
sexual assault of a child.  In his first issue, appellant requests us to abate this appeal
and remand the cause to the trial court for a hearing to determine whether appellant
had counsel, and whether he received effective assistance of counsel, during the 30-day period for filing a motion for new trial.  In his second issue, appellant complains
that his due process rights were violated because the ground supporting the trial
court’s adjudication of guilt was not contained in the State’s motion to adjudicate.
          We dismiss the appeal for lack of jurisdiction.
BACKGROUND
          On January 21, 1999, appellant pled guilty to sexual assault of a child.  In
accordance with the terms of the plea bargain agreement, the trial court deferred
adjudication of guilt, placed appellant on community supervision for eight years, and
assessed a $750 fine.  Appellant did not appeal that ruling.  The State later filed a
motion to adjudicate guilt, to which appellant entered a plea of true.  On November
13, 2001, the trial court adjudicated appellant guilty of sexual assault of a child and
assessed punishment at four years in prison, pursuant to the parties’ agreement on the
plea of true.  In support of the adjudication, the trial court found that appellant
violated the terms and conditions of his community supervision by leaving Harris
County.  Appellant had retained counsel at the time of the adjudication of guilt and
sentencing.
          Appellant filed a hand-written, pro se notice of appeal on November 21, 2001,
which stated, “I want to appeal my 4 year sentence that I received in the 185th
Judicial District Court . . . .”  The trial court signed a hand-written order denying
appellant permission to appeal.  On November 29, 2001, appellant filed another
notice of appeal, which was type-written, entitled “Defendant’s Original Pro Se
Notice of Appeal.”  Appellant’s second notice of appeal incorrectly stated that “the
trial court granted permission to appeal.”  Although not supported by the record, the
notice of appeal also provided that the substance of the appeal was for a jurisdictional
defect and for a matter that was raised by written motion that was ruled on before
trial.  Appellant did not file a motion for new trial during the 30-day period following
sentencing.  
          On February 28, 2002, this Court issued an order abating this appeal and
ordering the trial court to conduct a hearing to determine whether appellant wished
to prosecute his appeal and to determine whether appellant was indigent.  At the
conclusion of the hearing, the trial court found that appellant wished to proceed with
his appeal, was indigent, and was entitled to appointed counsel.  The trial court also
stated on the record that, in spite of the representations in appellant’s second notice
of appeal, it had never granted appellant the right to appeal.  The trial court signed an
order appointing appellate counsel on March 7, 2002.  We reinstated the appeal on
March 15, 2002.
 
JURISDICTION
          As a threshold matter, we discuss the State’s contention that we are without
jurisdiction to consider the merits of this appeal because appellant failed to file a
notice of appeal conforming with former Texas Rule of Appellate Procedure
25.2(b)(3).  We agree.
          Texas Rule of Appellate Procedure 25.2 was amended effective January 1,
2003.  See Final Approval of Amendments to The Texas Rules of Appellate Procedure
(Tex. Crim. App. Dec. 23, 2002, order) (order adopting new appellate rules).  Because
this case was appealed and briefed prior to that date, the rules of appellate procedure
applicable before January 1, 2003 apply.  
          According to former Rule 25.2(b)(3), a defendant who pled guilty or nolo
contendere pursuant to a plea bargain to a felony charge and was sentenced in
accordance with that plea bargain had to comply with the notice provisions of that
rule to perfect his appeal.  Former Tex. R. App. P. 25.2(b)(3), 948-949 S.W.2d (Tex.
Cases) XLI, XCVI (Tex. Crim. App. 1997).  The former rule required a notice of
appeal filed by such a defendant 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.  Id. 
When former Rule 25.2(b)(3) applies, the failure of an appellant to follow the rule
deprives this Court of jurisdiction over the appeal.  White v. State, 61 S.W.3d 424,
428-29 (Tex. Crim. App. 2001) (holding that failure to follow former Rule
25.2(b)(3)(A) was jurisdictional).  Furthermore, Rule 25.2(b)(3)’s notice provisions
apply to defendants who are placed on deferred adjudication probation.  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).  
          This case involves two plea agreements: the first when appellant pled guilty to
the felony charge of sexual assault of a child and was placed on community
supervision, and the second when he pled true to the State’s allegations in its motion
to adjudicate guilt and was sentenced to four years’ confinement.  For former Rule
25.2(b)(3) purposes, “when a prosecutor recommends deferred adjudication in
exchange for a defendant’s plea of guilty or nolo contendere, the trial judge does not
exceed that recommendation if, upon proceeding to an adjudication of guilt, he later
assesses any punishment within the range allowed by law.”  Vidaurri, 49 S.W.3d at
885 (quoting  Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996)).  Here,
after it adjudicated appellant guilty, the trial court not only sentenced appellant within
the applicable punishment range allowed by law, it sentenced appellant to four years’
confinement in accordance with the specific terms of the second plea agreement. 
Accordingly, appellant was required to comply with the provisions of former Rule
25.2(b)(3) in filing his notice of appeal. 
          It is not enough that the notice of appeal include recitations meeting the
extra-notice requirements of the rule.  Flores v. State, 43 S.W.3d 628, 629 (Tex.
App.—Houston [1st Dist.] 2001, no pet.).  Such recitations must be supported by the
record and be true.  Id.  Appellant must, in good faith, comply in both form and
substance with the extra-notice requirements.  Id.  Noncompliance, either in form or
in substance, will result in a failure to properly invoke this Court’s jurisdiction over
an appeal to which the rule applies.  Id.  
          In appellant’s second notice of appeal filed November 29, 2001, appellant
claimed that the trial court had granted him permission to appeal, that the appeal was
for a jurisdictional defect, and that the substance of the appeal was raised by written
motion and ruled on before trial.  However, according to the record, the trial court
expressly denied appellant permission to appeal.  Further, it is apparent from the
record that the trial court had jurisdiction.  Finally, the clerk’s record includes only
two pretrial motions filed by appellant: a motion for substitution of counsel and a
motion for community supervision filed at the time appellant was placed on
community supervision.  Therefore, appellant’s notice of appeal does not comply in
substance with the requirements of former Rule 25.2(b)(3). 
 
 
CONCLUSION
          We dismiss the appeal for lack of jurisdiction.



                                                                                                                           
                                                             Laura C. Higley
                                                             Justice

Panel consists of Justices Taft, Keyes, and Higley.

Publish.  Tex. R. App. P. 47.2(b).

