Johnson v. State, C14-86-807-CR

• Court: Court of Appeals of Texas
• Writing for the Court: DRAUGHN; SEARS; In the interest of good reason
• Citation: 747 S.W.2d 568
• Parties: Dennis Wayne JOHNSON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Docket Number: No. C14-86-807-CR,C14-86-807-CR
• Decision Date: 31 March 1988

Page 568

747 S.W.2d 568 Dennis Wayne JOHNSON, Appellant,
v.
The STATE of Texas, Appellee. No. C14-86-807-CR. Court of Appeals of Texas,
Houston (14th Dist.). March 31, 1988.

Robert C. Bennett, Houston, for appellant.

John B. Holmes, Jr., Kathlyn Giannaula, Michael A. Roe, Houston, for appellee.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

The opinion previously issued is withdrawn and the following opinion is substituted:

Appellant entered a plea of guilty before the court to the offense of possession of a controlled substance, methamphetamine, under 28 grams. TEX.REV.CIV.STAT. art. 4476-15, § 4.04(b). He was convicted

Page 569

and the court sentenced him to ten years probation and a fine of five hundred dollars. Because this court lacks jurisdiction, we order the appeal dismissed.

On September 15, 1986, appellant was sentenced and gave oral notice of appeal. This was reduced to writing by the clerk of the court and filed among the papers of this cause. On December 4, 1986, this cause was dismissed for want of jurisdiction. Appellant filed a motion for rehearing which this court granted on February 19, 1987, and the appeal was reinstated.

On February 11, 1988, the appeal was again dismissed for want of jurisdiction, for failure to file a timely written notice of appeal. Appellant has filed a motion for rehearing in which he asks the court to reconsider its ruling of February 19, 1987, and to reinstate the appeal.

The reinstatement of the appeal which occurred on February 19, 1987, was based on a determination by this court that the notice of appeal in this cause constituted substantial compliance with TEX.R.APP.P. 40(b)(1). That rule requires "Notice of appeal shall be given in writing filed with the clerk of the trial court."

In Shute v. State, 744 S.W.2d 96 (Tex.Crim.App.1988) (not yet reported), the Court of Criminal Appeals considered for the first time the effect of Rule 40(b)(1), which requires written notice of appeal in criminal cases. The Court of Criminal Appeals held in Shute that Rule 40(b)(1) requires "independent written notice of appeal." Confronted with a notice of appeal form which is identical with the one employed in this case, the Court of Criminal Appeals said, "The lower court was correct in stating they were without jurisdiction to entertain the appeal."

Appellant would have us hold that TEX.R.APP.P. 83 permits this court to overlook a defective notice of appeal. We decline to so hold. Rule 83 provides, "A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities, in appellate procedure, either of form or substance...."

"Jurisdiction concerns the authority or power of a court to try a case." Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Crim.App.1978). In the case of an appeal, jurisdiction involves the power or authority of an appellate court to decide an appeal. In the absence of such authority, any judgment entered by this court would be void and of no effect. See Casias v. State, 503 S.W.2d 262, 264 (Tex.Crim.App.1973). While most rights and procedural matters may be waived, jurisdictional matters may not be. Ex parte Smith, 650 S.W.2d 68, 69 (Tex.Crim.App.1981); Lackey v. State, 574 S.W.2d...