Brown v. StateBrown v. State
- Reporters:
- ,
- Before:
- Lagarde
OPINION
Opinion by
Justice LAGARDE.Lloyd B. Brown appeals his convictions for indecency with a child. Pursuant to a plea bargain, appellant pleaded guilty to the charges in exchange for the State’s recommendation that he be placed on community supervision for ten years and assessed a $300 fíne in each case. The parties, however, left to the trial court’s discretion the issue of adjudication of guilt. The trial court found sufficient evidence to substantiate appellant’s guilt in both cases, deferred further proceedings, probated the $300 fines, and placed appellant on ten years’ community supervision in each case. Subsequently, the State moved to adjudicate guilt in each case. The trial court found the allegations in the State’s motions true, adjudicated appellant’s guilt, and imposed punishment in each case at ten years’ imprisonment.
Appellant’s attorney filed a brief in which he concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The brief presents a professional evaluation of the records showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response presenting four grounds he contends are arguable points of error.
Because appellant received deferred adjudication following negotiated guilty pleas, his notice of appeal upon adjudication in each case had to state the appeal was for a jurisdictional defect, a matter raised by written motion and ruled on before trial, or the trial court gave permission to appeal.
See
Jurisdictional Amendments
Riewe
In
State v. Riewe,
13 S.W.3d 408 (Tex. Crim.App.2000), the court of criminal appeals addressed the issue of whether rule
*736
25.2(d)
2
of the rules of appellate procedure permitted amendment of a defective notice of appeal outside the jurisdictional time limits of rule 26.2(a).
See id.
at 412-14;
Even a claimed deprivation of constitutional rights cannot confer jurisdiction upon a court where none exists, anymore than parties can by agreement confer jurisdiction upon a court. So any amendments made pursuant to rule 25.2(d) cannot be jurisdictional amendments.
Id. at 413-14 (emphasis supplied) (footnotes omitted).
A plain reading of the above language would indicate that a defective notice of appeal, once filed, could never be amended to either invoke or enlarge appellate jurisdiction. 3 Such a holding would greatly restrict, if not completely abrogate, rule 25.2(d). Por the reasons that follow, we conclude Riewe should not be read so broadly.
Riewe
involved the State’s appeal of a trial court’s ruling on a motion to suppress.
See id.
at 409. The State’s notice of appeal did not comply with article 44.01 of the code of criminal procedure.
See id.;
In affirming this Court’s decision to dismiss the State’s appeal, the court of criminal appeals relied upon a series of cases that concerned appellate courts using the appellate rules to obtain or retroactively obtain jurisdiction over a case. See Oldham v. State, 977 S.W.2d 354, 360 (Tex.Crim.App.1998) (court of appeals could not use former appellate rule 2(a) to extend time for defendant to file a motion for new *737 trial); Garza v. State, 896 S.W.2d 192, 194-95 (Tex.Crim.App.1995) (court of appeals could not use former rule 2(a) to extend time to issue a revised opinion upon filing of petition for discretionary review after time to issue opinion under former rule 101 had expired); Davis v. State, 870 S.W.2d 48, 47 (Tex.Crim.App.1994) (defendant may not amend a notice of appeal out of time); Jones v. State, 796 S.W.2d 183, 186-87 (Tex.Crim.App.1990) (former appellate rule 88 could not be used to allow defendant to amend his notice of appeal out of time). None of these cases, however, addresses the situation before this Court; namely, whether a party may amend its notice of appeal within the time limits of rule 26.2 of the rales of appellate procedure.
Invocation of this Court’s Jurisdiction
The rules of appellate procedure do not define this Court’s jurisdiction; the Texas Constitution does.
See
In the cases before the Court, appellant has complied with all the rules of appellate procedure necessary to invoke this Court’s jurisdiction. He filed amended notices of appeal that complied with rule 25.2(b)(3) within the time prescribed by rule 26.2. The amended notices of appeal were filed pursuant to rule 25.2(d), which allows amendment of a notice of appeal to correct “a defect or omission in an earlier filed notice.”
See
The issue in Riewe was whether the State could amend its notice of appeal after it had filed its brief and after the time had expired for the State to file a notice of appeal. See Riewe, 13 S.W.3d at 414. There is nothing in Riewe to suggest the court of criminal appeals intended to abrogate rule 25.2(d). Rather, the court made clear that the amendment language in rule 25.2(d) could not be used to enlarge or modify the substantive rights of a litigant, and it reaffirmed its prior holdings that if a court of appeals does not have jurisdiction over a case, that court cannot invoke a rule of appellate procedure to obtain jurisdiction. Id. at 413. Accordingly, we conclude the holding of the court of criminal appeals in Riewe did not abrogate rule 25.2(d).
Therefore, we hold that a party may amend its notice of appeal under rule 25.2(d) to successfully invoke an appellate court’s jurisdiction as long as the amendment occurs within the time to file a notice of appeal under rule 26.2.
6
Applying that holding to the cases here, we note the records reflect appellant was sentenced on March 4, 1999. Appellant filed a general notice of appeal in each ease on March 10, 1999 which, under the facts presented, would not invoke this Court’s jurisdiction.
See Lyon, 872
S.W.2d at 735. In each case, on March 18, 1999, appellant timely filed a motion for new trial and an amended notice of appeal. Therefore, appellant’s amended notices of appeal were filed within the time allowed under rule 26.2.
See
*739 Allegations in Notice of Appeal Must be Substantiated
This Court has previously held that in a case to which rule 25.2(b)(3) applies, a notice of appeal must comply, both in form and substance, with the requirements of rule 25.2(b)(3). See Sherman v. State, 12 S.W.3d 489, 492 (Tex.App.—Dallas 1999, no pet.). Without such compliance, this Court’s jurisdiction is not properly invoked. Id. In counsel’s Anders brief, he asserts there are no jurisdictional defects in these cases, citing Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App.1990). The brief, therefore, conflicts with appellant’s amended notices of appeal. We have examined the records in these cases and conclude the trial court properly exercised jurisdiction over appellant’s cases. We conclude the statements in appellant’s amended notices of appeal that the appeals are for a jurisdictional defect have no basis in fact. Therefore, appellant’s notices of appeal do not comply in substance with rule 25.2(b)(3). Consequently, he has not properly invoked this Court’s jurisdiction over these cases. Accordingly, we dismiss these appeals for want of jurisdiction. See Slaton, 981 S.W.2d at 210. 8
Notes
.
(a) By the defendant. The notice of appeal must be filed:
(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or
(2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.
(b) By the State. The notice of appeal must be filed within 15 days after the day the trial court enters the order, ruling, or sentence to be appealed.
.
(d) Amending the notice. 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.
. As stated, rule 25.2(b)(3) requires a defendant appealing a conviction resulting from a negotiated guilty plea to file a notice of appeal containing extra-notice statements.
See
.This Court dismissed because the State did not file a notice of appeal that complied with article 44.01 within fifteen days of the date of the order the State sought to appeal. See State v. Riewe, 997 S.W.2d 644, 645 (Tex.App.—Dallas 1999), aff’d, 13 S.W.3d 408 (Tex.Crim.App.2000). We held the State did not timely invoke our jurisdiction and rule 25.2(d) could not be used to enlarge the substantive rights of the litigants. See id.
. We note appellant filed his amended notices of appeal with the trial court and not this Court.
Under rule 25.2(e), the trial court retains jurisdiction over a criminal case until “the record is filed in the appellate court....”
See
. We are neither presented with nor do we address the issue of whether a party may amend its notice of appeal before it files its brief but after the expiration of the time limits set by rule 26.2. See, e.g., State v. Brown, 28 S.W.3d 609 (Tex.App.—Corpus Christi 2000, no pet.). However, Riewe seems to have settled that issue.
. Each amended notice of appeal stated the appeal was for a jurisdictional defect.
. Because we conclude our jurisdiction has not been properly invoked in these appeals, we do not have jurisdiction to address the issues presented by appellant in his pro se response to his counsel‘s Anders brief. Appellant‘s pro se response does not raise any matter over which we have jurisdiction. We also do not have jurisdiction to grant appellant’s request to correct the judgments entered in these cases, both of which reflect a fine the trial court did not orally pronounce in court. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998).