NO. 07-98-0205 -CR 07-98-0206-CR 07-98-0207-CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MAY 21, 2002

______________________________ MARY HELE N GRANADOS, AP PELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 100 TH DISTRICT COURT OF COLLING SW ORTH COUNT Y; NO. 2353, 2354 A ND 2355; HON ORABLE DAVID M. M CCOY, JU DGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. App ellant Mary H elen Gra nad os a ppe als f romthr ee j udg m ents ad

j udic atin g he r gu ilt and sentencing her to various term s of confinem ent. We affirm.
BACKGROUND
In May, 1997, a Collingsworth County grand jury issued three indict ments against appellant. Indictme ntin C aus e No . 23 53 w as f or b urg lary

of ahab itat ion o n or

abo ut A pril1 Trial cou rt C aus e No . 23 53 isappellate No. 07-98-0205-CR. Trial court Cause No.

2354 is a ppe llateNo. 07- 98- 020 6-C R. Tria l cou rt C aus e No . 23 55 isappellate No. 07-98- 0207-CR. 2 28, 1997. Indictme nt in Cause No. 2354 w as f or b urg lary

of ahab itat ion o n or

abo ut A pril 2, 1997. Indictme nt in Cause No. 2355 w as for forgery occurring on or about March 27, 1997. 1
On June 16, 1997, pursuant to plea bargains, appellant pled guilty in each cause. The tria l cou rt f

oun d th at t he e vide ncesub sta ntia ted app ella n t’s guilt in each cause. Pursuant to written agreem ents between appellant and the State, the trial court deferred adjudication of guilt. In Cause No. 2355, adj udication was deferred for tw o years. In Cause Nos. 2353 and 2354, adjudication was deferred for 10 years. The agreed
recom menda tion w as t hat eac h pe rio d of deferred adj udication was to be s erved concurrently, and not consec utively, which was what the trial court ordered.
As a term of pr obation the trial court required appellant to serve 60 days in the Collingsworth County Jail. The ja il time as a probation condition wasin accordance w ith the recom menda tion of the S tate pursuant to oral agreem ent betwee n the State and appellant which w

as placed of

record and agreed to by appe llant and her attorney during the deferr

ed a dj udic ation hearing. The jail time condition w as not typew ritten in the judgm ents, but w

as interlined by hand. The judgm ents do not have a date no ted for the interlineati on, nor initials or other indi cation o f who inter lined the jail time condition of probation.3

The State subsequent ly filed motions to adj udicate in each cause. The trial court adjudicated appellant guilty in each cause on February 24, 1998 , and on that date im posed sentences. In Cause No. 2355, appel lant was sentenced to i ncarcerati on for two years. In Cause No. 2353, she w as sentenced to confinement f or 16 years. In Caus e No. 2354, she was sentenced to confinement for 16 year s. On March 26, 1997, the trial court signed judgm ents nunc pro tunc in Cause Nos. 2353 and 2354 because the original judgm ents reflected sentences of co nfinement f or 15 years. Appellant tim ely f

iled m otio ns f

or n ew tria l and gen era l not ic es of appeal in each
cause. On August 25, 1998, she filed am ended notices of appeal. The am ended notices state that the appeals are for j urisdictional def ects and that the trial court granted permission to appeal. Appellant urges, via four issues, that th e ju dgmen t in each cause should be reversed because her due process of law rights were violated. First, she ass erts that the judgm ents ent ere d fo llow ing t he d efe rre d ad j udic atio n he arin gs are fun dam ent ally defective and the ref

ore void becaus e th ey cont ain handwritten notations. Her second and third issues claim the trial court erred in impo sing sentences excee ding thepleabar gain agreemen ts

. Her fourth issu e claims error by the trial court in assessi ng terms o f confinement

exceeding the agreed periods for deferred adjudication , withou t giving appell ant an opportun ity to withdraw her pl ea agreements.
JURISDI CTION2 A rule of appella te proce dure will be ref erred to a s “TRAP_” here aft er. 4 We first consider whether w e have j urisdiction to consider the merits of the appeal s. See Statev. Ro bert s , 940 S.W. 2d 655, 657 (Tex. Crim.A pp. 1996). Courts addres s the question of jurisdiction sua sponte; for, unles s a cou rthas jurisd iction over a matter, its actions in the mat

ter are without validity. Id . at 657 n. 2. If the j urisdiction of a court of app ealsis not properly invoked, the power of the appellate court to act is as abs entas if it did not exist , id ., and the appeal w ill be di sm issed for lack of j urisdiction. See State v. Ri ewe , 13 S.W.3d 408, 413-14 (Tex.Crim .App. 2000). Appellate jurisdiction is invoked by giving timely and proper notice of appeal. See id . at 410. An u ntimely notice of appeal or a notice of appeal whic h does n ot conf orm to jurisdictional requirem ents or con tain ju risdictional assertions will not invoke the jurisdiction of the co urtof appeals. See W hite v. State , 61 S.W.3d 424, 428-29 ( Tex. Crim .App. 2001); Ri ewe , 13 S.W.3d at 411.
To perfect appeal from a judgm entwhich was rendered on the defen dant’s plea of guilty or nolo contende re under Code of Crim inal Procedure article 1.15, and in which the punishment

assessed did not ex

ceed the punishm ent recom mende d by the prosecutor and agreed to by the defendant, the no tice of appe al m ust (a) specify that t he appea l is for a jurisdictional defect; (b) speci fy that the substance of th e appeal was r aised by written mot ion and ru led on before trial; or (c) state that the trial court granted perm ission to appeal. See T EX . R. A PP . P. 25.2(b)(3) 2 ; W hite , 61 S.W.3d at428 . The requirements of TRAP 25.2(b)(3) apply to a defendant who plea bargains for deferred adj udication, to the5

extent the appeal is based on term s of the plea bargain. See Vidaurri v. State , 49 S.W.3d 8 80, 8 83-85 (Tex.Crim .App. 2001). When the appeal concerns whet her the sentence upon revocation an d a dj ud i ca ti on i s i n a cc or da nc e wi th th e p ro se cu to r’ s r ec omme nda tio n pursu ant to t he pl ea bar gain , the re quir ements of TRAP 25.2(b)(3) apply. Id . at 884-85;
see W atson v. State , 924 S.W.2d 711, 714 (Tex.Crim .App. 1996). In th e a bs en ce of so me express agreem ent betwee n the prosecutor and the defendant limiting the punishm ent to be assessed in the event of a subsequent adj udication of defendant, w hen the prosecutor
recom mends

deferred adjudicat i on in exchange for a def endant’ s plea of guilty or nolo conten dere and deferred adj udication is granted, then the trial judge does not exceed the
recom menda tion if, upon proceeding to an adj udication of guilt, the judge later asse sses any punishm ent within the range allowed by law. See W oods v. State , 68 S.W.3d 667, 669 (Tex.Crim .App. 2002); W atson , 924 S.W.2d at 714; see al so Ditto v. State , 988 S.W.2d 236, 239-40 (Tex.Crim. App. 1999)

. If the original notice of appeal fail s to invoke jurisdiction of the appellate court, an
ou t- of -t i me am endme nt cannot serve to invoke jurisdiction. See Ri ewe , 13 S.W.3d at 413-14. More over, TRAP 25.2(d) doe s not permit an app ellate court to grant a m otion to amend the notice of

appeal if the amendm ents sought to be m ade to the notice of appeal are jurisdictional amendm ents. Id . Once j urisdiction is lost, an appellate court lacks the power to invoke any rule to thereafter obtain j urisdiction. Id . at 413; see TRAP 2. Dismissal of an issue or the entire matter is appropriate unless the form of the notice of appeal is proper to perfect appeal as tothe issue or m atter. See W hite , 61 S.W.3d at 428

.6

The de fe rr ed ad ju di ca ti on jud gme nts com plied with the plea bargain agreements in placing appellant on deferred adjudication and impos ing jail time as a cond iti on of probation. In such si tuation, the trial judge did not exceed the recom menda tion of the State when, upo n proceeding to an ad judication of guilt, the j udge later assessed punishment

within the range allowed by law. See W oods , 68 S.W.3d at 669; W atson , 924 S.W.2d at 714. Thus , ap pella nt’ s or igina l gen era l not icesof a ppe al donot con tain allegations necessary to in voke our appellate jurisdiction as to issues tw o, three and four because the req uir ements of TRAP 2 5.2(b )(3) apply to appeal of such issues. See Vidaurri , 49 S.W.3d at 884-85; W atson , 924 S.W.2d at 714. And, the am ended notices were not tim ely so as to invoke appellate jurisdiction. See Ri ewe , 13 S.W.3d at 413-14. We have ju risdiction only to dismiss the appeals as to appe llant’s se cond, t hird and fourth issues. Appellant’s first issue, however, asserts that the judgm ents placing her on deferred adjudication are void, an d that the subsequen t judgm ents adjudicat ing her guilty and
s entencing her are, there fore, void because they are base d on the vo id deferre d adjudication j udg m ents. Her ass ert ion is

that the interlineations in the judgm ents providing thatsheser

ve 6 0 da ys in C olling sw ort h Co unt

y J ail a s con dition of pro bation w ere alterations of the deferred adj udication judgm ents without any show ing in the record as to when the interl ineati ons were made. Under such circumstances, she urges, the alterations caused the j udgme nts to be void. Such issue ma y be considered on direct appeal. See Nix v. S tate , 2001 WL 717453, *2 (Tex.Crim .App. 2001).7 VOID JUD GMENTS- ISSUE1
In con side ring app ellan t’s firs t is sue ass erting that the deferred adj udication judgm ents were void, preceden t requires that we indulge every presum ption in favor of the regularity of the docum ents in the trial court. See McCloud v. S tate , 527 S.W.2d 885, 887 (Tex.Crim .App. 1975); Nichols v. State , 511 S.W.2d 945, 94 7-48 (Tex .Crim .App. 1974). The for mal j udgme nt of the trial court carries with it a presum ption of regularity and truthful ness, and such is never to b e ligh tly

set aside. See Ex pa rte Morgan , 412 S.W.2d 657, 659 (Tex.Crim .App. 1967). For a j udgme nt to be void, the record m ust leave no question aboutthe existence of the fundam ental defect. See Nix , 2001 W L 7174 53 at *2

. If the record is incomplete and the missing porti on could conce ivabl y show that the defect does not in fact ex ist, then the j udgme nt is not void, even though the available porti ons of the record tend to support the existence of the defect. Id

. As appellant notes in her brief, the record does not show when the interlineations in the deferred adjudication j udgme nts were m ade or who m ade them . In such instance,
we w ill not presume that the interlineations were im properly made or ma de after

the trial judge signed the judgments. See id .; McCloud , 527 S.W.2d at 887. The record does not3 Because of our disposition of appellant’s issue, we need not and do not consider

whether interlineation of conditions of probation in the judgm ents could have resulted in void judgm ents. See T EX . C R IM . P ROC . C ODE A NN . art. 4 2.12 §§ 2(2), 3(a ) (Verno n 2002); Speth v. State , 6 S.W.3d 530, 532, 534 (Tex .Cri m.A pp. 1999) (com munity s upervision involves suspension of a defendant’ssentence; is in lieu of sentence and not part of the sentence; term s are pa rt of a contract between the tri al court and the defendant; and conditions not objecte d to atthetim e co m m unit y s upe rvis ion is

gra nte d ar

e af firm ativ ely accepted as t erm s of th e contr act).

8 unq ues tion ably

show an y of the three deferred adj udication judgm ents to be void. 3 Accordingly, we overrule issue one.

CONCLUS ION Having dismissed appellant’s second, third and fourth issues for w ant of j urisdiction, and having overruled her first issue, we af firm the j udgme nts of the trial court.

Phil Johnson Justice Do not publish.