Baros, Waymond Troy v. State ( 2004 )

Dismissed and Memorandum Opinion filed October 7, 2004

Dismissed and Memorandum Opinion filed October 7, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00855-CR

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WAYMOND TROY BAROS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

 Brazoria County, Texas

Trial Court Cause No. 41,775

M E M O R A N D U M   O P I N I O N

Appellant, Waymond Troy Baros, entered a guilty plea to the felony offense of indecency with a child by contact.  In accordance with the terms of a plea bargain agreement, the trial court sentenced appellant on October 18, 2002, to six years’ deferred adjudication probation and assessed a $1,000 fine.  Appellant filed a notice of appeal.  Because we lack jurisdiction to consider this appeal, we dismiss.

The incident from which appellant’s indictment and subsequent guilty plea arose occurred on August 13, 2001. After corresponding in an internet chatroom, appellant and  sixteen-year-old S.B. agreed to meet.  Appellant picked up S.B. outside the Pearland neighborhood in which she lived, and the two proceeded to drive around the town.  At some point during this initial meeting, appellant asked S.B. to remove her shirt.  Appellant then touched her breasts.

Appellant and S.B. agreed to meet again about a week later.  On the night of the proposed second meeting, S.B.’s brother called the police to report a suspicious vehicle in the neighborhood.  Police stopped the car—which was driven by appellant—and questioned appellant.  Appellant voluntarily went to the police station and gave a statement.  Ultimately, appellant was indicted for the August 13th incident and entered a plea of guilty on October 18, 2002.  Appellant filed a notice of appeal on November 6, 2002.

Because appellant’s notice of appeal was filed on November 6, 2002, former Rule 25.2 of the Texas Rules of Appellate Procedure governs this case.^[1]  Former Rule 25.2(b)(3) provides that when an appeal is from a judgment rendered on a defendant’s plea of guilty or nolo contendere and the punishment assessed does not exceed the punishment recommended by the State and agreed to by the defendant, 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.”  Tex. R. App. P. 25.2(b)(3), 948–949 S.W.2d (Tex. Cases) xcvi (1997, amended 2002). Appellant’s general notice of appeal does not comply with the requirements of former Rule 25.2(b)(3). Accordingly, we are without jurisdiction to consider appellant’s claims that his plea was involuntary and that he received ineffective assistance of counsel.  See Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001) (“Rule 25.2(b) does not permit the voluntariness of the plea to be raised on appeal.”); Luna v. State, 985 S.W.2d 128, 129–30 (Tex. App.—San Antonio 1998, pet. ref’d) (holding that a claim for ineffective assistance of counsel is nonjurisdictional and therefore cannot be considered in a case that fails to meet the filing requirements of former Rule 25.2).

For the reasons stated above, we dismiss the appeal for want of jurisdiction.

/s/        Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed October 7, 2004.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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^[1]  Current Rule 25.2(d) (effective January 1, 2003) requires the appellate record to include a certification by the trial court of a defendant’s right to appeal under Rule 25.2(a)(2).  Tex. R. App. P. 25.2(d). For reasons that are not clear in the record, the trial court in this case filed a certification of appellant’s right to appeal; the certification stated that appellant had no right to appeal and that appellant had waived his right to appeal.  The certification is not required under former Rule 25.2.  See Tex. R. App. P. 25.2, 948–949 S.W.2d (Tex. Cases) xcv–xcvi (1997, amended 2002). Nevertheless, under either version of Rule 25.2, appellant has no right to appeal this action.