Rudy Garza Pena v. State of Texas

No. 04-01-00321-CR Rudy Garza PENA, Appellant v. STATE of Texas, Appellee From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2000-CR-3810 Honorable Sam Katz, Judge Presiding Memorandum Opinion Opinion by: Paul W. Green, Justice Sitting: Phil Hardberger, Chief Justice Paul W. Green, Justice Sandee Bryan Marion, Justice Delivered and Filed: April 24, 2002 DISMISSED IN PART AND AFFIRMED IN PART Rudy Garza Pena was convicted of driving while intoxicated (DWI) and sentenced to six years imprisonment, probated for six years. Because the issues in this appeal involve the application of well-settled principles of law, we dismiss part of Pena's appeal and overrule his remaining issue in this memorandum opinion. Tex. R. App. P. 47.1. We affirm the conviction for the following reasons: 1. In his first and third issues, Pena raises a legal sufficiency challenge and claims ineffective assistance of counsel. Because Pena pleaded nolo contendere and was sentenced within the agreed plea recommendation, he must comply with the notice provisions of Texas Rule of Appellate Procedure 25.2(b)(3) to perfect the appeal. Cooper v. State, 45 S.W.3d 77, 78-79 (Tex. Crim. App. 2001). Rule 25.2(b)(3) requires such a defendant in the notice of appeal 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. Tex. R. App. P. 25.2(b)(3). The failure to follow Rule 25.2(b)(3) deprives an appellate court of jurisdiction over the appeal. White v. State, 61 S.W.3d 424, 428-29 (Tex. Crim. App. 2001). Pena's notice of appeal provides that he appeals, with permission from the trial court, a substantive and jurisdictional defect arising from the denial of his motion in arrest of judgment. Because we have no jurisdiction to consider Pena's legal sufficiency challenge or his ineffective assistance of counsel claim, we dismiss his first and third issues. 2. In his second issue, Pena challenges the denial of his motion in arrest of judgment, claiming the indictment fails to allege the felony offense of driving while intoxicated. The indictment alleges Pena has been convicted of DWI twice before the April 17, 2000 offense - once on July 20, 1987 and again on February 2, 1993. Pena argues that because the July 20, 1987 conviction occurred more than ten years before the current offense, it cannot be used to support a felony DWI conviction. Ordinarily, DWI is a Class B misdemeanor. Tex. Pen. Code Ann. § 49.04(b) (Vernon Supp. 2002). The law governing Pena's 2000 DWI offense provides that two prior DWI convictions may elevate a third DWI offense from a Class B misdemeanor to a third-degree felony so long as not all of the prior DWI convictions are more than ten years old. Act of Apr. 25, 1995, 74th Leg., R.S., ch. 76, § 14.56, 1995 Tex. Gen. Laws 841 (amended 2001) (current version at Tex. Pen. Code Ann. § 49.09(b); 49.09(e)); Smith v. State, 1 S.W.3d 261, 263 (Tex. App.-Texarkana 1999, pet. ref'd). In this case, although one of Pena's prior DWI convictions is more than ten years old, the other is not; therefore, the allegations in the indictment support a felony DWI conviction. We overrule Pena's second issue and affirm the judgment of the trial court. PAUL W. GREEN, JUSTICE DO NOT PUBLISH