Luera v. State

• Decision Date: 28 December 2001
• Docket Number: No. 10-00-310-CR.,10-00-310-CR.
• Citation: 71 S.W.3d 408
• Parties: Ray Rivas LUERA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

71 S.W.3d 408

Ray Rivas LUERA, Appellant, v. The STATE of Texas, Appellee.

No. 10-00-310-CR.

Court of Appeals of Texas, Waco.

December 28, 2001.

Pete Gilfeather, Attorney At Law, Ft. Worth, for appellant.

Dale S. Hanna, Johnson County Dist. Atty., David W. Vernon, Johnson County Asst. Dist. Atty., Cleburne, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

Ray Rivas Luera appeals from his plea-bargained conviction for indecency with a child. In this appeal, we decide whether an appellant can substantially comply with the requirements of Rule of Appellate Procedure 25.2(b)(3) and, if so, whether Luera has substantially complied with these requirements. We conclude that substantial compliance can satisfy the requirements of Rule 25.2(b)(3) but that Luera has not shown substantial compliance. Accordingly, we dismiss his appeal for want of jurisdiction.

I.

Luera pleaded nolo contendere to the offense of indecency with a child by exposure. Pursuant to the State's plea recommendation, the court deferred an adjudication of Luera's guilt and placed him on unadjudicated community supervision for ten years. Luera filed a motion to set aside his plea about one month later. He alleged that his plea was involuntary because, at the time he entered his plea, he did not understand that his court-ordered participation in a sex offender counseling program would require him to admit his guilt as a part of the therapeutic process and he did not understand that he would be required to register as a sex offender.

After a hearing, the court denied the motion. The court also informed the parties that it was amending the conditions of Luera's community supervision to include a provision that Luera begin complying with the 1000-foot child safety zone requirement of the community supervision order by 6:00 that evening and report to jail by 6:00 that evening to begin serving the 90 days imposed as a condition of community supervision. See TEX.CODE CRIM. PROC. ANN. art. 42.12, §§ 12(a), 13B(a) (Vernon Supp.2002).

Luera informed the court that he intended to appeal and that he would not object to the court's requirement of the child safety zone "as a condition of any [appeal] bond the court would set." The prosecuting attorney concurred that this should be a condition "of any appeal bond" and asked that the court set bail at $25,000. Luera requested that bail be set at $5,000. The court set bail at $25,000 and required as a condition of the appeal bond that Luera comply with the child safety zone.

The prosecutor then asked whether the court would require Luera to comply with the other conditions set out in the community supervision order during the pendency of the appeal. Luera objected that such a requirement would be improper. The court advised that it would require him to comply with all the conditions of community supervision during the pendency of appeal "except for the requirements to pay the fees and fine." The court rejected Luera's request that he not be required to participate in the sex offender counseling program during the appeal. Luera also contended that he should not be required to serve the 90 days imposed as a condition of community supervision during the appeal. The court agreed and stated on the record that he would not be required to do so.

Luera filed a general notice of appeal immediately following the hearing. His sole point of error challenges the court's denial of the motion to set aside his plea.

II.

An appellant who is convicted and sentenced pursuant to a negotiated guilty plea must comply with the requirements of Rule of Appellate Procedure 25.2(b)(3) to challenge the voluntariness of his plea.¹ See Proctor v. State, 45 S.W.3d 762, 764 (Tex.App.-Corpus Christi 2001, no pet.); Elizondo v. State, 979 S.W.2d 823, 824 (Tex.App.-Waco 1998, no pet.); Long v. State, 980 S.W.2d 878, 878 (Tex.App.-Fort Worth 1998, no pet.); accord Cooper v. State, 45 S.W.3d 77, 83 (Tex.Crim.App. 2001) (notice of appeal purporting to present issues raised by pre-trial motion does not give appellate court jurisdiction to review voluntariness); Tex.R.App. P. 25.2(b)(3). Rule 25.2(b)(3) provides:

(3) But if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice 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. "Because voluntariness is neither jurisdictional nor a pre-trial matter, an appellant may challenge the voluntariness of his [plea] only when he first obtains trial court permission." Elizondo, 979 S.W.2d at 824; accord Cooper, 45 S.W.3d at 83; Proctor, 45 S.W.3d at 764; Long, 980 S.W.2d at 878.

We dismissed Elizondo's appeal (in which he challenged the voluntariness of his negotiated guilty plea) for want of jurisdiction because he did not state in his notice of appeal that he had the trial court's permission to prosecute the appeal and because our review of the record indicated that the trial court had "emphatically denied the right to appeal." See Elizondo, 979 S.W.2d at 824-25 & n. 4.²

Similarly, the Court of Criminal Appeals held in Cooper that the appellant could not challenge the voluntariness of his negotiated guilty plea under a notice of appeal purporting to seek review only of issues raised by pre-trial motion. See Cooper, 45 S.W.3d at 77-78, 83. Instead, the Court suggested that such a challenge would be better raised in a habeas proceeding. Id. at 82-83.

III.

In the recent past, this Court and others have suggested that strict compliance with the requirements of Rule 25.2(b)(3) is a jurisdictional prerequisite when appealing from a plea-bargained conviction. See, e.g., Craddock v. State, 32 S.W.3d 886, 887 (Tex.App.-Waco 2000, no pet.); Robinson v. State, 24 S.W.3d 438, 439 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Nevertheless, courts have recognized that substantial compliance may suffice to meet the requirements of Rule 25.2(b)(3). See, e.g., Martinez v. State, 50 S.W.3d 572, 576 n. 3 (Tex.App.-Fort Worth 2001, pet. ref'd); Gomes v. State, 9 S.W.3d 170, 171-72 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd); see also Marbut v. State, 58 S.W.3d 241, 242 (Tex.App.-Waco 2001, order).

The notion of "substantial compliance" finds its origin in a decision of the Court of Criminal Appeals under former appellate rule 40(b)(1), the predecessor to Rule 25.2(b)(3).³ In Riley v. State, the Court determined that the defendant's general notice of appeal combined with an order in the record granting permission to appeal the court's suppression ruling "substantially complied with Rule 40(b)(1)." 825 S.W.2d 699, 701 (Tex.Crim.App. 1992). Our research has disclosed only two other occasions on which the Court of Criminal Appeals discussed substantial compliance in this context. See State v. Riewe, 13 S.W.3d 408, 411 (Tex.Crim.App.2000) (regardless of viability of substantial compliance concept, record contains nothing which would indicate substantial compliance); Davis v. State, 870 S.W.2d 43, 47 (Tex.Crim.App.1994) (general notice of appeal insufficient and record contains no "other document which combined with appellant's notice of appeal substantially complies with Rule 40(b)(1)"); see also Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim.App.1994) (trial court's grant of free appellate record does not constitute "implied permission to appeal").

The concept of "substantial compliance" as developed in recent cases holds:

a notice of appeal substantially complies with rule 25.2(b)(3) and therefore invokes [an appellate court's] jurisdiction if the notice is timely filed and the information required to be specified in the notice is contained elsewhere in the ... record.⁴

Martinez, 50 S.W.3d at 576 n. 3. Courts have found substantial compliance in three primary scenarios under Rule 25.2(b)(3) and its predecessor, Rule 40(b)(1).

Courts have found substantial compliance when the record contains an order granting the defendant permission to appeal. See Riley, 825 S.W.2d at 701; Marbut, 58 S.W.3d at 242; Miller v. State, 11 S.W.3d 345, 347 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (trial court stated on record that it would permit appeal); Salinas v. State, 9 S.W.3d 338, 338-39 (Tex. App.-San Antonio 1999, no pet.); Martinez v. State, 907 S.W.2d 34, 36 (Tex.App.-San Antonio 1995, no pet.); Nite v. State, 882 S.W.2d 587, 589-90 (Tex.App.-Houston [1st Dist.] 1994, no pet.); but see Happ v. State, 958 S.W.2d 474, 474-75 (Tex.App.-Fort Worth 1997, no pet.) (trial court's oral grant on the record of permission to appeal does not suffice to establish substantial compliance).

Courts have also found substantial compliance from docket notations and entries in the judgment, particularly when other documentary evidence in the record tends to show a valid basis for the appeal. See Johnson v. State, 47 S.W.3d 701, 704 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (unsigned docket entry "Defendant gave written notice of appeal as to motion to suppress only" combined with hand-printed notation "11-16-98 `MTN TO SUPPRESS'" on judgment beside preprinted notation "Notice of Appeal"); Miller, 11 S.W.3d at 347 (unsigned docket entry "Appeal only on Motion to Suppress" combined with permission to appeal stated on record and judge's signature on notice of appeal with handwritten notation "Motion to Suppress"); Gomes, 9 S.W.3d at 172 (unsigned docket sheet entry "Notice of Appeal Filed on Motion to Suppress Only" combined with judge's signature on notice of appeal with handwritten notation "Motion to Suppress Only" and recitation in judgment that notice of appeal...