Jose Cruz Delatorre v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-97-00121-CR

Jose Cruz Delatorre, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 46,345, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

Pursuant to a plea bargain agreement, Appellant Jose Cruz Delatorre pled no contest to

manslaughter and was sentenced to eleven years' imprisonment. Delatorre appeals the judgment in several

points of error contending that he has a general right to appeal and that his plea was entered involuntarily.

Additionally, he attempts to appeal a matter raised in a written pretrial motion. We will affirm the judgment

of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 1, 1996, Delatorre was charged by indictment for causing the death of Kathryn

Mayes by intoxication manslaughter and manslaughter. While the State amended the indictment twice, both

amendments retained the charges of intoxication manslaughter and manslaughter. At all times, the

paragraph charging manslaughter claimed that Delatorre did "recklessly cause the death of an individual"

and in doing so did "use a deadly weapon, to-wit: a motor vehicle." In response, Delatorre twice moved

to quash the indictment, claiming that the paragraph charging manslaughter failed to allege reckless acts but

instead alleged negligent acts. The trial court denied both motions to quash.

On December 2, 1996, Delatorre appeared before the court. The court admonished the

defendant who then pled no contest to the manslaughter paragraph of the indictment, pursuant to a plea

bargain agreement. After determining that his plea was free and voluntary, the court accepted Delatorre's

plea of no contest to manslaughter. The State then entered into evidence, without objection, a judicial

stipulation. In the stipulation the defendant admitted that he did "recklessly cause the death of an individual

. . . and use a deadly weapon . . . ." The stipulation was signed by Delatorre and his attorney. After finding

sufficient evidence to convict Delatorre of manslaughter, the court withheld its finding of guilt and recessed

the case for sentencing. On January 2, 1997, the court found Delatorre guilty of the offense of

manslaughter with a deadly weapon. The court then accepted and agreed to follow the plea agreement and

sentenced the defendant to eleven years' confinement in the Texas Department of Criminal Justice.

The plea bargain agreement stated, subject to the approval of the court, that:

in exchange for a plea of nolo contendere to MANSLAUGHTER WITH A DEADLY

WEAPON, the State agrees to recommend and does recommend in complete fulfillment

of all promises that Defendant be sentenced to a term of no more than eleven (11) years

confinement . . . . Defendant shall not file nor perfect any direct appeal of defendant's

conviction in this cause. Defendant shall not file any motion in arrest of judgment nor shall

defendant seek permission of the court to file any direct appeal.

The agreement, which was dated December 2, 1996, was signed by Delatorre, his attorney, and the State's

attorney. Additionally, both the defendant and his attorney signed an addendum which stated:

[Defendant] further understand[s] if the punishment assessment by the Court does not

exceed the punishment recommended by the State and agreed to by [defendant], that the

Court must give its permission before [defendant] may prosecute an appeal of this case

except for those matters raised by written motion filed prior to trial which were ruled on

by the court.

Delatorre appealed his conviction and sentence by general notice on January 23, 1997. He did not then

nor does he now claim the trial court granted him permission to appeal. On February 13, 1997, he filed

an amended notice, specifying as a ground for appeal the trial court's earlier order overruling his pretrial

motion to quash the indictment. Delatorre now contends that (1) he has a general right to appeal; (2) his

plea was rendered involuntarily because the trial court failed to properly advise him; (3) the trial court erred

in overruling his motion to quash the indictment; and (4) the evidence was insufficient to sustain a guilty

finding.

DISCUSSION

Right to Appeal

First, this Court must decide whether Delatorre has a general or limited right to appeal.

Generally, a felony defendant who pleads no contest and whose sentence does not exceed the period

recommended in the plea bargain is not allowed to appeal any matter without the trial court's permission

except rulings on pretrial motions and jurisdictional issues. See Tex. R. App. P. 40(b)(1) (1) ; Lyon v. State ,

872 S.W.2d 732, 736 (Tex. Crim. App.), cert. denied , 512 U.S. 1209 (1994); Moss v. State , 938

S.W.2d 186, 189 (Tex. App.--Austin 1997, pet. ref'd). Recently the court of criminal appeals decided

that a challenge to the voluntariness of a plea is an exception to the restrictive proviso of Rule 40(b)(1).

Flowers v. State , 935 S.W.2d 131, 133-34 (Tex. Crim. App. 1996). Therefore, a defendant who pleads

no contest pursuant to a plea bargain agreement may, without the trial court's permission, challenge by

general notice of appeal (1) jurisdictional errors, and (2) nonjurisdictional errors that affect the voluntariness

of his plea. See Moss , 938 S.W.2d at 189 . A defendant may also appeal pretrial rulings by special notice.

See Tex. R. App. P. 40(b)(1).

In his first point of error, Delatorre claims he has a general right to appeal because his plea

is not governed by Rule 40(b)(1). Under the rule, a defendant who enters a plea pursuant to a plea bargain

agreement has a limited right of appeal when the punishment assessed does not exceed the punishment

recommended by the prosecutor and agreed to by the defendant. See Tex. R. App. P. 40(b)(1). (2) In this

case, the State recommended that the defendant be sentenced to a term of "no more than eleven (11) years

confinement." Delatorre now complains the recommendation was not specific enough to comply with Rule

40(b)(1); he maintains that the State must recommend a finite period, such as "eleven years," rather than

specifying a cap of "no more than eleven years." We find nothing in the rule's language which indicates a

plea agreement must contain a specific period rather than a cap. Rule 40(b)(1) states only that the court's

sentence shall not exceed the "punishment recommended." Id . In the present case, the eleven-year

sentence did not exceed the punishment recommended by the State.

Nor do we find any Texas case that interprets the language of Rule 40(b)(1) to restrict the

State's recommendation to a finite period. To the contrary, a plea bargain consists of the State making

certain concessions, such as agreeing to recommend less than the full range of punishment available.

Whether the State recommends a finite period or a period with a cap is irrelevant in light of the purpose

of a plea bargain, which is to foster a negotiated agreement between the State and the defendant. See

Salazar v. State , 773 S.W.2d 34, 40-41 (Tex. App.--Houston [1st Dist.] 1989, pet. denied) (Brown,

C.J., concurring) (agreement as to specific punishment unnecessary because agreement as to punishment

the State was to recommend complies with Rule 40(b)(1), which only requires that punishment assessed

does not exceed punishment recommended by prosecutor ) (original emphasis); see also Alfaro v.

State , 904 S.W.2d 173, 174 (Tex. App.--San Antonio 1995, no pet.) (sentence of thirty years did not

exceed plea agreement that contained cap of thirty years). We hold that the State's recommendation need

not be a finite period in order for the underlying plea agreement to be valid and comply with Rule 40(b)(1).

Delatorre cites Eubanks v. State and Eaglin v. State , but they do not support his

contention that the recommended punishment must be a specific period. Eubanks , 599 S.W.2d 815 (Tex.

Crim. App. 1980); Eaglin , 843 S.W.2d 153 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd). In

Eubanks , the court found that while the defendant's attorney had signed the agreement, the defendant had

never personally agreed to the recommended punishment and this invalidated the plea agreement. 599

S.W.2d at 816 . In Eaglin , the court found that the State never recommended any punishment but instead

reserved the right to argue for a sentence. 843 S.W.2d at 154-55 . No valid underlying agreement was

found there either. Id . In the present case, the State recommended a punishment of no more than eleven

years and the defendant personally agreed to it. The court's punishment did not exceed that

recommendation; therefore, Delatorre's right to a general appeal cannot stand on the ground that the plea

agreement did not comply with Rule 40(b)(1).

Additionally, Delatorre claims that even if the plea agreement had conformed with Rule

40(b)(1), he is not precluded from a general appeal because he never agreed to waive his right to appeal.

A criminal defendant may waive many rights he enjoys, including the right to appeal. See Smith v. State ,

858 S.W.2d 609, 611 (Tex. App.--Amarillo 1993, pet. ref'd) (citing Faulder v. Hill , 612 S.W.2d 512,

514 (Tex. Crim. App. 1980)). A written or oral waiver prevents a defendant from appealing as long as

the waiver was made knowingly and intelligently and with certainty as to what punishment would be

assessed. See Ex parte Thomas , 545 S.W.2d 469, 470 (Tex. Crim. App. 1977); Doyle v. State , 888

S.W.2d 514, 518 (Tex. App.--El Paso 1994, pet. ref'd); Smith , 858 S.W.2d at 611 .

At the sentencing hearing, the court stated:

I will advise you that in accordance with your plea agreement because I have

followed that, that your agreement was that you would not file or perfect any appeal of the

conviction in this case and I will ask you if you want me to go ahead and sign and accept

the waiver of your appellate rights?

Delatorre answered "yes." The court then questioned the defendant's attorney who answered that in

recognition of the court's decision he was bound by the plea bargain but that the defendant may want to

file a motion for new trial. After some discussion, the court again asked Delatorre's attorney about the

"matter of the appeal"; the attorney stated that Delatorre wanted to talk to another lawyer. Delatorre

claims this testimony demonstrates that he never waived his general right to appeal. To the contrary,

Delatorre personally waived his right to appeal.

The record further supports that a knowing and voluntary waiver was made. Before

accepting the defendant's plea, the trial court advised him of his constitutional rights and admonished

Delatorre, stating the range of punishment. After making inquiries to both the defendant and his attorney,

the court determined Delatorre was mentally competent. Only after the court sentenced him did Delatorre

waive his right to appeal. A waiver may be premature if made at a time when the defendant had no way

of knowing with certainty the punishment to be assessed. See Smith , 858 S.W.2d at 612 (citing Thomas ,

545 S.W.2d at 470 ). The defendant here voluntarily waived his right to appeal with full knowledge of his

sentence. We overrule point of error one and hold that Delatorre does not have a general right to appeal

but has one that is limited under Rule 40(b)(1). (3)

Voluntariness of the Plea

In points of error two through five, Delatorre contends he entered his plea involuntarily

because the trial court failed to comply with article 26.13, which codifies the constitutional due process

requirement that a plea must be made freely, knowingly, and voluntarily. See Tex. Code Crim. Proc. Ann.

art. 26.13(b) (West 1989); Medford v. State , 766 S.W.2d 398, 400 (Tex. App.--Austin 1989, pet.

ref'd). A defendant who enters a plea may always appeal the issue of voluntariness. See Flowers , 935

S.W.2d at 133-34 . Specifically, Delatorre claims the court did not properly admonish him as required by

subsections one and four of article 26.13 and did not properly advise him as to certain legal aspects and

consequences of his plea. Article 26.13 states:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall

admonish the defendant of:

(1) the range of the punishment attached to the offense;

. . .

(4) the fact that if the defendant is not a citizen of the United States of America, a plea

of guilty or nolo contendere for the offense charged may result in deportation, the

exclusion from admission to this country, or the denial of naturalization under

federal law;

. . .

(b) No plea of guilty or nolo contendere shall be accepted by the court unless it appears

that the defendant is mentally competent and the plea is free and voluntary.

(c) In admonishing the defendant as herein provided, substantial compliance by the court

is sufficient, unless the defendant affirmatively shows that he was not aware of the

consequences of his plea and that he was misled or harmed by the admonishment of

the court. . . .

Tex. Code Crim. Proc. Ann. art. 26.13. In determining whether a plea is voluntary, a reviewing court

examines the whole record. See Crawford v. State , 890 S.W.2d 941, 944 (Tex. App.--San Antonio

1994, no pet.).

A . Noncitizen Status

Delatorre claims the trial court did not advise him that his plea may affect his status as a

noncitizen in the United States. After determining that the defendant was not a United States citizen, the

judge stated:

Do you understand, Mr. Delatorre, that because you are not a citizen of the United

States that the immigration and naturalization department could have some determination

on your status. They could revoke your status, they could deport you, they might do

nothing at all, but your status in this country is subject to review by the immigration and

naturalization department and based on your plea of no contest , if you do that, that is

strictly up to the immigration department, not to this court to determine your status in this

country.

(Emphasis added). The defendant responded "yes." Although the court's admonishment does not follow

the statute precisely, we find it substantially complies. To substantially comply with article 26.13(a), a trial

court need not follow any "particular form or procedure when admonishing an accused." Harris v. State ,

887 S.W.2d 482, 484 (Tex. App.--Dallas 1994, no pet.) (citing Williams v. State , 770 S.W.2d 81, 82

(Tex. App.--Dallas 1989, no pet.)).

In Garcia v. State , the appellate court found substantial compliance when the trial judge

merely stated that upon a guilty plea, the defendant could be sent back to his original country. 877 S.W.2d

809, 813 (Tex. App.--Corpus Christi 1994, pet. ref'd). Although the statement did not fully encompass

the requirements of article 26.13, it substantially complied because it included the most severe action which

could have befallen the defendant. See id . at 813. Here, the trial court warned Delatorre that his

temporary residence status could be revoked and he could be deported. The court did not totally fail to

admonish the defendant. See Morales v. State , 872 S.W.2d 753,754-55 (Tex. Crim. App. 1994). We

find the trial court did substantially comply with article 26.13 by admonishing Delatorre that his plea could

severely affect his status as a noncitizen.

Once substantial compliance is found, the burden shifts to the defendant to affirmatively

show that he entered his plea without understanding the consequences of his action and that he suffered

harm. See Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992); Harris , 887 S.W.2d at 484 .

The above testimony indicates that Delatorre understood the consequences of pleading no contest as a

noncitizen. In addition, the defendant has made no affirmative showing that the court's admonishments

misled or harmed him. We overrule point of error two.

B. Range of Punishment

Delatorre claims the trial court did not properly advise him on the range of punishment. At

trial the judge stated:

You understand that you are charged with the offense of intoxication manslaughter

and manslaughter and that these are I think second degree felonies and punishable by two

years to twenty years in the penitentiary and a fine of up to $10,000 could be assessed in

that case. And the offense of manslaughter is a second degree felony as well, you

understand that is punishable by two years to twenty years in the penitentiary and a fine of

up to $10,000 could be imposed. You understand that?

Delatorre answered "yes." We find the court's admonishment did substantially comply with article 26.13,

which requires only that the defendant be advised of the "range of punishment attached to the offense."

Tex. Code Crim. Proc. Ann. art. 26.13 (West 1989). The charging indictment alleged the offenses of

intoxication manslaughter and manslaughter. Under the Penal Code, both intoxication manslaughter and

manslaughter are second degree felonies, each punishable by two to twenty years of confinement and a fine

of no more than $10,000. Tex. Penal Code Ann. §§ 49.08 , 19.04, 12.33 (West 1994). The trial court

properly stated the range of punishment attached to each offense, after which the defendant pled no contest

to manslaughter only. At the time he pled, Delatorre was fully aware of the punishment range attached to

manslaughter.

Substantial compliance will be found even when the wrong range is given as long as the

punishment assessed is within the range given in the admonishment and the actual range of punishment under

the Penal Code. See Rodriguez v. State, 850 S.W.2d 603, 608 (Tex. App.--El Paso 1993, no pet.)

(substantial compliance found when plea papers gave range of 5 to 99 years confinement but court referred

to charge stated in indictment which had range of 2 to 20 years and defendant was actually sentenced to

10 years). In the present case, Delatorre was sentenced to eleven years, the cap recommended in the plea

agreement. The eleven-year term is also within the range of punishment stated by the trial court and in the

Penal Code. We hold the trial court did substantially comply with article 26.13 in regard to the range of

punishment.

Again, the burden shifts to the defendant to show that he was misled or harmed. See id. ;

Hughes , 833 S.W.2d at 140 . Delatorre's sentence adhered strictly to the plea agreement, which was

signed by both the defendant and his attorney. Delatorre responded to the trial court's inquiry that he

understood the range of punishment and his attorney ultimately concurred with his plea before the trial court

accepted it. There is nothing in the record to indicate that the defendant was confused or harmed by the

trial court's admonishment. We overrule point of error three.

C. Notice of the True Nature of the Charge

In point of error four, Delatorre contends the trial court failed to give him, prior to accepting

his plea, real notice of the true nature of the charge, specifically the legal definition of recklessness as an

element of manslaughter. He claims the trial court should have advised that in order for an act to be

reckless it must be done with "awareness but with a conscious disregard that a substantial and justifiable

risk that the circumstances exist or the result will occur and that the risk must have been of such a nature

and degree that it constituted a gross deviation from the standard of care that an ordinary person would

exercise under the circumstances." He contends such failure by the trial court disabled Delatorre from

entering a voluntary plea because he did not know and understand the actual elements of the offense.

In viewing the whole record, we find Delatorre did in fact understand the elements of the

offense and did enter his plea voluntarily. The indictment, the plea bargain agreement, and the judicial

stipulation all specifically include recklessness as an element of manslaughter. The stipulation, signed by

Delatorre and his attorney, states in pertinent part:

. . . I did then and there: RECKLESSLY CAUSE THE DEATH OF AN INDIVIDUAL

. . . AND I, THE SAID JOSE CRUZ DELATORRE, DO FURTHER PRESENT THAT

DURING THE COMMISSION OF THE OFFENSE ALLEGED ABOVE, DID THEN

AND THERE USE A DEADLY WEAPON, TO-WIT: A MOTOR VEHICLE . . . .

Additionally, the defendant signed an Agreement to Stipulate Upon a Plea of Nolo Contendere that

"[defendant] understands the elements of [the offenses]." The record reveals the trial court made a

substantial effort to ensure that the defendant understood the proceedings, that he was mentally competent,

that no one had threatened him, and that his plea was free and voluntary. Before he pled no contest to

manslaughter, the trial court properly admonished Delatorre regarding his noncitizen status and the range

of punishment. Upon a showing of proper admonishment, we may presume the defendant entered his plea

knowingly and voluntarily. See Soto v. State , 837 S.W.2d 401, 405 (Tex. App.--Dallas 1992, no pet.).

The evidence does not support the defendant's theory that he entered his plea involuntarily because he did

not know and understand the elements of the offense.

The trial court is not required to advise the defendant of every aspect of law relevant to his

case, including the legal definition of "recklessness." See Rose v. State , 465 S.W.2d 147, 149 (Tex. Crim.

App. 1971). Requiring the court to provide a legal definition of the elements of the offense charged would

be akin to requiring the court to act as legal counsel for the defendant; such is not the trial court's function.

See id. In the present case, Delatorre was fully aware that recklessness was an element of the offense to

which he pled. In light of the evidence and the foregoing discussion in which we found substantial

compliance with article 26.13, and that defendant was not harmed or misled by the trial court, we hold

Delatorre did knowingly and willingly enter a plea of no contest to manslaughter. We overrule point of

error four.

D. Consequence of His Plea

The purpose of article 26.13 is to assure that the defendant does not plead guilty or no

contest without a full understanding of the charges against him and the consequences of his plea. See

Basham v. State, 608 S.W.2d 677, 678 (Tex. Crim. App. 1980). In his fifth point of error, Delatorre

claims the trial court failed to advise him of the consequences of his plea, specifically his admission to using

a deadly weapon, which rendered him ineligible for parole until he served one-half of his sentence. He

claims that the trial court's admonishment came only after it had already sentenced him, thereby causing

his plea to be involuntary. Again, we must look at the totality of the circumstances to determine if Delatorre

understood the consequences of his plea. See Crawford , 890 S.W.2d at 944 .

Prior to his plea, the defendant was fully aware that the offense to which he pled contained

the factor "use of a deadly weapon" because both the indictment and plea agreement contained those

terms. We hold that Delatorre was informed of and understood the range of punishment which could result

from a guilty plea to manslaughter with a deadly weapon. The Agreement to Stipulate states that

"[defendant] understands the elements of [the offenses] as alleged in the indictment and the consequences

of a plea of nolo contendere including the minimum and maximum punishment provided by law ."

(Emphasis added). At trial, the court asked the defendant if he had read and understood the Agreement

to Stipulate; Delatorre replied "yes." The trial court was not required to instruct Delatorre on every aspect

of the law pertinent to his case, such as mandatory time before probation. See Rose , 465 S.W.2d at 149 .

We find no evidence to support the defendant's theory that he did not understand the consequences of his

plea. Rather, the entire record shows that Delatorre was properly admonished, and that he was aware of

and understood all the possible ramifications of the offense to which he pled no contest. Because his plea

was entered voluntarily regarding his understanding of the consequences, we overrule point of error five.

Pretrial Motion

In point of error six, Delatorre claims the trial court erred in overruling his pretrial motion

to quash the second paragraph of the indictment. Under Rule 40(b)(1), a defendant who pleads no contest

pursuant to a plea bargain agreement has limited rights of appeal which include the right to appeal a matter

raised in a written pretrial motion. See Tex. R. App. P. 40(b)(1). However, the notice of appeal must

specify that the matter was raised in such a fashion. Id. Delatorre appealed by general notice on January

23, 1997. On February 13, 1997, he amended his appeal and raised as error the trial court's order

denying his motion to quash the indictment. We find that Delatorre did not timely perfect his Rule 40(b)(1)

appeal.

In a criminal case, a defendant perfects an appeal when he files notice within thirty days

after the day sentence is imposed. See Tex. R. App. P. 26.2(a)(1) (Former Rule 41(b)(1)). Although

Delatorre's general appeal was within the thirty-day period, his amended appeal was not. An amended

appeal specifying a written pretrial motion as a ground for appeal is untimely if not filed within thirty days

of sentencing, regardless of the timeliness of the general appeal. See Jones v. State , 796 S.W.2d 183,

186 (Tex. Crim. App. 1990) (filing amended notice of appeal which specifies matters raised in pretrial

motion was untimely when filed over forty-five days after sentencing even though general notice was timely).

Delatorre filed his amended notice more than thirty days after his sentencing on January 2, 1997.

Consequently, his specific appeal was untimely and therefore this Court is unable to entertain his appeal

of the trial court's ruling on his motion to quash the indictment. Id. at 187 ; Berrios-Torres v. State , 802

S.W.2d 91, 94 (Tex. App.--Austin 1990, no pet.) (failing to file notice in compliance with Rule 40(b)(1)

renders appeal defective for purposes of appealing pretrial motion). We overrule point of error six.

CONCLUSION

Because the court sentenced Delatorre pursuant to a plea of no contest and in accordance

with a valid underlying plea bargain agreement, we hold the defendant has a right to appeal as limited by

Rule 40(b)(1). However, we must preclude his appeal of a written pretrial motion because his amended

notice was untimely. While Delatorre may appeal the remaining issue of the voluntary nature of his plea,

we find, in light of all the evidence, that he entered his plea knowingly and voluntarily. We therefore affirm

the trial court's judgment.

Bea Ann Smith, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: November 13, 1997

Publish

1. Former Rule 40(b)(1) and the current Rule 25.2(b)(3) are substantially similar. Because this case was

brought under the former, we will refer throughout to Rule 40(b)(1).

2. In pertinent part, Rule 40(b)(1) states:

Appeal is perfected in a criminal case by giving timely notice of appeal . . . but if the

judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15,

Code of Criminal Procedure, and the punishment assessed does not exceed the punishment

recommended by the prosecutor and agreed to by the defendant and his attorney, in order

to prosecute an appeal for nonjurisdictional defect or error that occurred prior to entry of the

plea the notice shall state that the trial court granted permission to appeal or shall specify that

those matters were raised by written motion and ruled on before trial. . . . Id . (emphasis

added).

3. Because we hold Delatorre has a limited right to appeal as governed by Rule 40(b)(1), we need not

reach point of error seven appealing the sufficiency of the evidence to support the judgment.

t he was aware of

and understood all the possible ramifications of the offense to which he pled no contest. Because his plea

was entered voluntarily regarding his understanding of the consequences, we overrule point of error five.

Pretrial Motion

In point of error six, Delatorre claims the trial court erred in overruling his pretrial motion

to quash the second paragraph of the indictment. Under Rule 40(b)(1), a defendant who pleads no contest

pursuant to a plea bargain agreement has limited rights of appeal which include the right to appeal a matter

raised in a written pretrial motion. See Tex. R. App. P. 40(b)(1). However, the notice of appeal must

specify that the matter was raised in such a fashion. Id. Delatorre appealed by general notice on January

23, 1997. On February 13, 1997, he amended his appeal and raised as error the trial court's order

denying his motion to quash the indictment. We find that Delatorre did not timely perfect his Rule 40(b)(1)

appeal.

In a criminal case, a defendant perfects an appeal when he files notice within thirty days

after the day sentence is imposed. See Tex. R. App. P. 26.2(a)(1) (Former Rule 41(b)(1)). Although

Delatorre's general appeal was within the thirty-day period, his amended appeal was not. An amended

appeal specifying a written pretrial motion as a ground for appeal is untimely if not filed within thirty days

of sentencing, regardless of the timeliness of the general appeal. See Jones v. State , 796 S.W.2d 183,

186 (Tex. Crim. App. 1990) (filing amended notice of appeal which specifies matters raised in pretrial

motion was untimely when filed over forty-five days after sentencing even though general notice was timely).

Delatorre filed his amended notice more than thirty days after his sentencing on January 2, 1997.

Consequently, his specific appeal was untimely and therefore this Court is unable to entertain his appeal

of the trial court's ruling on his motion to quash the indictment. Id. at 187 ; Berrios-Torres v. State , 802

S.W.2d 91, 94 (Tex. App.--Austin 1990, no pet.) (failing to file notice in compliance with Rule 40(b)(1)

renders appeal defective for purposes of appealing pretrial motion). We overrule point of error six.

CONCLUSION

Because the court sentenced Delatorre pursuant to a plea of