Williams v. StateWilliams v. State
- Reporters:
- , ,
- Before:
- Cayce
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
CAYCE, Chief Justice.
Pursuant to Rule 50, we have reconsidered our prior opinion upon the appellant’s petition for discretionary review.
L.K. Williams appeals from the trial court’s judgment adjudicating his guilt for the offensе of aggravated assault with a deadly weapon. We will dismiss the appeal for want of jurisdiction.
BACKGROUND
On January 3, 2000, pursuant to a plea bargain agreement, appellant pleaded guilty to the offense of aggravated assault with a deadly weapon and was placed on five years’ deferred adjudication community supervision. On May 3, 2000, the *147 State filed a petition to proceed to an adjudication of guilt, alleging appellant had violated certain conditions of his community supervision. On July 6, 2000, aftеr a hearing, the trial court adjudicated appellant’s guilt and assessed punishment at ten years’ imprisonment. Following the adjudication proceeding, appellant filed a timely motion for new trial and a general notice of appeal.
Uрon receipt of the clerk’s record, we informed appellant’s counsel by letter that his notice of appeal failed to conform to the mandatory requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure, in that it did not specify the appeal is for a jurisdictional defect; that the substance of the appeal was raised by written motion and ruled on before trial; or, that the trial court granted permission to appeal.
1
In response to our request, appellant’s counsel submitted a letter brief asserting two bases for continuing the appeal: (1) appellant may amend his notice under
Discussion of Law
The jurisdiction of this court to hear and determine the appeal of a criminal case is invoked by giving notice of appeal. Lemmons v. State, 818 S.W.2d 58, 60 (Tex.Crim.App.1991). The notice of appeal must be timely, in writing, and substantively correct. State v. Riewe, 13 S.W.3d 408, 410-13 (Tex.Crim.App.2000); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996); see also State v. Muller, 829 S.W.2d 805, 812 (Tex.Crim.App.1992).
25.2 Criminal Cases.
(a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal. In a death-penalty case, however, it is unnecessary to file a notice of appeal.
(b) Form and Sufficiency of Notice.
(1) Notice must be given in writing and filed with the trial court clerk.
(2) Notice is sufficient if it shows the party’s desire to appeal from the judgment or other appealable order, and, if the State is the appellant, the *148 notice complies with Code of Criminal Procedure article 44.01.
(3) But if the appeal is from a judgment rendered on the defendant’s plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:
(A) specify that the appeal is for a jurisdictional defect;
(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or
(C) state that the trial court granted permission to appeal.
In Villanueva v. State, 977 S.W.2d 693 (Tex.App.—Fort Worth 1998, no pet.), we held:
To invoke this cоurt’s jurisdiction over an appeal from a negotiated-guilty plea, a notice of appeal must expressly specify that the appeal is for a jurisdictional defect, specify that the substance of the appeal was raised in writing and ruled on before trial, or state that the trial court granted permission [to appeal].
Id.
at 695;
see also
Appellant’s notice does not comply with the substantive requirements of
Relying on
Lyon v. State,
872 S.W.2d 732 (Tex.Crim.App.),
cert. denied,
512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994), appellant contends that his general notice of appeal is, nevertheless, sufficient to invoke our jurisdiction to correct a jurisdictional defect. In
Lyon,
the court of criminal appeals held that under former Rule 40(b)(1), an appellant could appeal a jurisdictional issue without the trial court’s permission and without raising the issue in a pretrial motion.
Id.
at 736. Unlike
We hold that the substantive written requirements of
Moreover, the court of criminal appeals recently reaffirmed that a court of appeals has no jurisdiction over an appellant’s post-adjudication appeal when the appellate complaint relates to thе original deferred adjudication proceeding. Daniels v. State, 30 S.W.3d 407, 408 (Tex.Crim.App.2000). In Daniels, the appellant argued that the loss of the reporter’s record prevented him from examining or challenging the voluntariness of his original plea or any rulings on pretrial motions. The court of criminal appeals held;
Pursuant to Manuel, the reporter’s record from the original deferred adjudication proceeding is not necessary to this appeal’s resolution since appellant cannot now appeal any issues relating to the original deferred adjudication proceeding. The Court of Appeals, therefore, correctly decided that it had no jurisdiction over appellant’s lost reporter’s record claim.
Id.; see also Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999).
If appellant in this case wanted to challenge the voluntаriness of his guilty plea, or complain of a jurisdictional defect in the trial court that placed him on deferred adjudication community supervision, he was required to timely appeal those issues when deferred adjudication community supervision was first imposed. See Northington, 43 S.W.3d at 548; Salgado, 36 S.W.3d at 912; Jones v. State, 42 S.W.3d 143, 148-49 (Tex.App.—Amarillo 2000, no pet.). We have no jurisdiction to review those complaints now. Daniels, 30 S.W.3d at 408.
Appellant contends that, under
(d) Amending the Notice. An amended noticе 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.
In
Riewe,
the court of criminаl appeals held that the State, as appellant, did not invoke the jurisdiction of the court of appeals by its original notice of appeal, because it did not contain two statutorily required certifications that (1) the appeal wаs not taken for delay and (2) that the evidence suppressed by the trial court was of “substantial importance” in the ease.
Id.
at 411-13.
6
The court further held that, because the original notice did not confer jurisdiction on the court of appeals, an amended notice of appeal filed by the State pursuant to
It is true thatRule 25.2(d) allows an amendment to a notice of appeal. But when the Legislature granted this Court rule-making authority, it expressly provided that the rules could not abridge, enlarge or modify the substantive rights of a litigant. And our caselaw prevents a court of appeals from using an appellate rule to crеate jurisdiction where none exists. It does not matter which appellate rule the court of appeals attempts to use, be it former Rule 83, former Rule 2(b), or currentRule 25.2(d) . The point is that, once jurisdiction is lost, the court of appeals lacks the power to invoke any rule to thereafter obtain jurisdiction. 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 toRule 25.2(d) cannot be jurisdictional amendments.
Id. at 413-14 (emphasis added) (footnotes omitted).
According to
Riewe,
the only amendments permitted under
Conclusion
Appellant’s general notice of appeal fails to confer jurisdiction on this court, and his attempt to raise by this appeal complaints relating to his original deferred adjudication proсeeding is untimely. We, therefore, must dismiss the appeal for want of jurisdiction.
Notes
. We further informed appellant that we were concerned about our jurisdiction in this case because under article 42.J 2, section 5(b) of the Texas Code of Criminal Procedure, nо appeal may be taken from the trial court‘s decision to proceed to an adjudication of guilt. TexCode Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2001).
.
. But see Marshall v. State, 28 S.W.3d 634, 637 (Tex.App.—Corpus Christi 2000, no pet.); Perez v. State, 28 S.W.3d 627, 632 (Tex.App.—Corpus Christi 2000, no pet.); Lopez v. State, 25 S.W.3d 926, 928 (Tex.App.—Houston [1st Dist.] 2000, no pet.); Moore v. State, 4 S.W.3d 269, 272 (Tex.App.—Houston [14th Dist.] 1999, no pet.); Minix v. State, 990 S.W.2d 922, 923 (Tex.App.—Beaumont 1999, pet. ref‘d); Price v. State, 989 S.W.2d 435, 437 (Tex.App.—El Paso 1999, pet. ref‘d); Hernandez v. State, 986 S.W.2d 817, 820 (Tex.App.—Austin 1999, pet. ref‘d); Vidaurri v. State, 981 S.W.2d 478, 479 (Tex.App.—Amarillo 1998, pet. granted); Johnson v. State, 978 S.W.2d 744, 746 (Tex.App.—Eastland 1998, no pet.); Session v. State, 978 S.W.2d 289, 291-92 (Tex.App.—Texarkana 1998, no pet.); Rigsby v. State, 976 S.W.2d 368, 369 n. 1 (Tex.App.—Beaumont 1998, no pet.).
.
But see Johnson v. State,
32 S.W.3d 444, 445-46 (Tex.App.—Houston [1st Dist.] 2000, pet. filed) (holding that, notwithstanding
. Importantly, this does not foreclose a defendant from raising jurisdictional defects for the first time on appeal. As appellant has reminded us, it is a well-settled rule that a lack of jurisdiction is fundamental error and may be raised for the first time on appeal by the parties or by the court. E.g., Stine v. State, 908 S.W.2d 429, 431 (Tex.Crim.App.1995); Martinez, 5 S.W.3d at 725. We, however, can only correct fundamental error when we have appellate jurisdiction to do so. In the absence of а timely and substantively correct notice of appeal, we have no appellate jurisdiction to hear and decide any issue, even issues involving fundamental error. Cf. Riewe, 13 S.W.3d at 413 (“Even a claimed deprivation of constitutional rights cannot confer jurisdiction upon a court where none exists....”).
. Where the State is the appellant, both certifications are required by article 44.01 of the Texas Code of Criminal Procedure.
. Prior to adoption of