Barry v. State

Full title: CHAD TIMOTHY BARRY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Feb 4, 2004

No. 10-02-032-CR (Tex. App. Feb. 4, 2004)

Opinion

No. 10-02-032-CR.

Opinion delivered and filed February 4, 2004. DO NOT PUBLISH.

Appeal from the 12th District Court, Leon County, Texas, Trial Court # CM-01-110. Affirmed.

Jon A. Jaworski — Houton for Appellant/Relator. Whitney T. Smith, Leon County Asst. District Attorney — Centerville for Appellee/Respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.¹

1 This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the court.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

Chad Timothy Barry pleaded nolo contendere to possession of marihuana in the amount of fifty pounds or less but more than five pounds. Pursuant to a plea bargain, the court placed Barry on deferred adjudication community supervision for ten years. Barry seeks to appeal the court's denial of his suppression motion. Barry perfected this appeal in January 2002. Therefore, his appeal is governed by former Rule of Appellate Procedure 25.2(b)(3). Tex.R.App.P. 25.2(b)(3), 948-949 S.W.2d (Tex. Cases) xcvi (Tex.Crim.App. 1997, amended 2002). The former rule provided that when a defendant appealed from a plea-bargained conviction, the notice of appeal must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

Id. Rule 25.2(d) (both then and now) permits an appellant to amend the notice of appeal "at any time before the appellant's brief is filed." TEX. R. APP. P. 25.2(d), 948-949 S.W.2d (Tex. Cases) xcvi (Tex.Crim.App. 1997, amended 2002); accord TEX. R. APP. P. 25.2(d). Barry filed a general notice of appeal. He did not amend the notice before filing his brief. Although it could be argued that Barry should be given an opportunity to amend the notice, he was plainly aware that the notice of appeal did not comply with Rule 25.2(b)(3) because he discusses this issue at the beginning of his brief. Barry argues that he sufficiently invoked the jurisdiction of this Court because he substantially complied with the requirements of the rule, citing this Court's decision in Luera v. State. 71 S.W.3d 408 (Tex.App.-Waco 2001, pet. ref'd). He cites other documents in the record which indicate that the parties and the trial court understood that he intended to appeal the suppression ruling. It is true that in Luera this Court held that substantial compliance with Rule 25.2(b)(3) could be established by reference to documents in the record other than the notice of appeal. Id. at 413-14. However, the Court of Criminal Appeals effectively overruled our holding in Luera when it held that the notice of appeal itself must substantially comply with Rule 25.2(b)(3) and that an appellate court may not refer to other documents in the record to determine whether an appellant has substantially complied with the rule. Johnson v. State, 84 S.W.3d 658, 660 (Tex.Crim.App. 2002). A plea-bargaining appellant's compliance with Rule 25.2(b)(3) determines the "matters that are cognizable by the appellate court." Bayless v. State, 91 S.W.3d 801, 803 n. 2 (Tex.Crim.App. 2002). Barry's failure to comply with this rule "prevent[s] us from having `the power to address the merits of [his] claims.'" Ramirez v. State, No. 04-02-837-CR, 2003 Tex. App. LEXIS 4681, at *2 (Tex.App.-San Antonio June 4, 2003, no pet.) (mem. op.) (not designated for publication) (quoting Bayless, 91 S.W.3d at 803 n. 2); accord Monreal v. State, 99 S.W.3d 615, 622-23 (Tex.Crim.App. 2003) (lower court did not err by denying appellant's request to amend notice of appeal after appellant's brief filed). Accordingly, we affirm the judgment. See Ramirez, No. 04-02-837-CR, 2003 Tex. App. LEXIS 4681, at *3.