Opinion
No. 05-02-01832-CR.
Opinion issued March 20, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-52125-WR. DISMISSED.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
MEMORANDUM OPINION
In this case, Richard Steven Cavallo entered a negotiated guilty plea to the offense of burglary of a habitation with intent to commit assault. Appellant also pleaded true to one enhancement paragraph. Pursuant to the plea bargain agreement, the trial court deferred adjudicating guilt, placed appellant on ten years community supervision, and assessed a $2000 fine. The State subsequently filed a motion to proceed with adjudication of guilt. Following a hearing, the trial court adjudicated appellant guilty and sentenced him to seventeen years confinement. Sentence was imposed on September 12, 2002, and appellant did not file a motion for new trial. Therefore, his notice of appeal was due by Monday, October 14, 2002. See Tex.R.App.P. 4.1(a), 26.2(a)(1). On November 7, 2002, appellant filed a pro se motion for notice of appeal. Appellant filed a brief in which he asserts the stamped notation on the trial court's judgment stating, "Defendant excepts and gives notice of appeal to the Court of Appeals, Fifth District of Texas at Dallas," is sufficient to meet the requirements of rule 25.2. We disagree. To invoke our jurisdiction, the notice of appeal must be timely and must be in writing. See State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App. 2000); see also Tex.R.App.P. 25.2(c)(1) ("Notice must be given in writing and filed with the trial court clerk."). In this case, the notation on the trial court's judgment, although acknowledging appellant's intent to appeal, was not an independent notice of appeal required by rule 25.2(c)(1). See Shute v. State, 744 S.W.2d 96, 97 (Tex.Crim.App. 1988); Robertson v. State, 760 S.W.2d 836 (Tex.App.-Austin 1988, no pet.). Therefore, the notation does not constitute appellant's notice of appeal. To perfect his appeal, appellant had to give notice of appeal in writing by October 14, 2002. The first document in the record constituting a notice of appeal was filed on November 7, 2002. That notice is untimely, leaving us without jurisdiction over the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998) (per curiam); Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996); Boyd v. State, 971 S.W.2d 603, 605-06 (Tex.App.-Dallas 1998, no pet.). Accordingly, we dismiss the appeal for want of jurisdiction.
Rule 25.2 was amended effective January 1, 2003, and a part of the change involved renumbering the subsections within the rule. However, the requirement that a notice of appeal be written did not change. Therefore, we cite to the amended rule.