RODRIGUEZ v. STATE (1999)

OPINION ON MOTION

The State moves that we dismiss the appellant's appeal for want of jurisdiction.   We deny the motion.

On May 26, 1998, appellant entered a guilty plea to the offense of sexual assault.   Appellant received four years confinement in the Institutional Division of the Texas Department of Criminal Justice.   The appellant did not file a motion for new trial.   On June 25, 1998, the appellant filed a general notice of appeal.   On July 10, 1998, the appellant filed an amended notice of appeal stating that the trial court granted the appellant permission to appeal.

 The State asks that we dismiss the appellant's appeal because the notice of appeal originally filed does not demonstrate facially that the trial court gave the appellant permission to appeal.   Yet, Texas Rule of Appellate Procedure 25.2(d) provides:

An amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court at any time before the appellant's brief is filed.   The amended notice is subject to being struck for cause on the motion of any party affected by the amended notice.   After the appellant's brief is filed, the notice may be amended only on leave of the appellate court and on such terms as the court may prescribe.1

We find that the current appellate Rule 25.2(d) allows an out-of-time amendment of a defective notice of appeal-even one from a defendant who has pleaded guilty or nolo-contendere, pursuant to Article 1.15 of the Code of Criminal Procedure.²  We therefore deny the State's motion to dismiss for want of jurisdiction.

FOOTNOTES

1.   tex.R.App. P. 25.2(d).

2.   See Glenn v. State, Nos. 01-96-00452-CR, 01-96-00453-CR, 1997 WL 706737, at *2 (Tex.App.-Houston [1st Dist.] Nov.6, 1997, pet. ref'd).

PER CURIAM.