Jones v. State, 038-89

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation796 S.W.2d 183
Docket NumberNo. 038-89,038-89
PartiesGene Autry JONES, Appellant, v. The STATE of Texas, Appellee.
Decision Date26 September 1990

Robert J. Gradel, Lampasas, for appellant.

Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.


WHITE, Judge.

Appeal is taken from a conviction for driving while intoxicated, third offense. Art. 6701l-1(e), V.A.C.S. After finding appellant guilty, the trial court found appellant to be a habitual offender, V.T.C.A., Penal Code § 12.42(d), and assessed his punishment at twenty-five years imprisonment in the Texas Department of Criminal Justice, Institutional Division.

In appellant's petition for discretionary review, he argues that the sentence of twenty-five years exceeded the maximum allowed for this offense. Appellant bases this argument on the contention that § 12.42 cannot be used to enhance this offense. Appellant asserts that § 12.42 applies only to offenses enumerated as felonies within the Penal Code, and not to Art. 6701l-1(e) because it is not designated as a felony and its punishment range is less than that for a third degree felony.

The Court of Appeals disagreed with appellant, and held that "punishment for driving while intoxicated, third offense, may be enhanced pursuant to § 12.42 by proof of one or more previous convictions for a felony offense other than driving while intoxicated.... The district court did not err in overruling the motion to quash the enhancement paragraphs." Jones v. State, 762 S.W.2d 330 (Tex.App.-Austin, 1988). In reaching this decision, the Austin Court of Appeals refused to follow the holding in Childress v. State, 756 S.W.2d 11 (Tex.App.-1 "1 Dist.1988), which reached an opposite result. We granted appellant's petition to resolve this conflict between the courts of appeals.

Recently, this Court handed down a decision in Childress v. State, 784 S.W.2d 361 (Tex.Cr.App.1990), reversing the decision of the First Court of Appeals. In that case, the defendant was convicted of the offense of failure to stop and render aid, Art. 6701d, §§ 38 and 40, V.A.C.S., enhanced with two prior felony convictions. This Court decided V.T.C.A., Penal Code § 12.41 applies to determine if an offense to be enhanced is classified as a felony or misdemeanor, when that offense is defined outside the Penal Code and is not classified in accordance with the provisions of the Penal Code. Applying this rule to the offense of failure to stop and render aid, this Court held because that primary offense carried penitentiary time as a possible punishment, it would be considered a third degree felony and, therefore, would be subject to enhancement by proof of two prior felony convictions under § 12.42(d). Childress, 784 S.W.2d, at 365-66.

Because driving while intoxicated, third offense, Art. 6701l-1(e), V.A.C.S., carries penitentiary time as a possible punishment, we hold that it is also considered a third degree felony, and is also subject to enhancement by proof of two prior felony convictions under § 12.42(d). Childress, supra, and Phifer v. State, 787 S.W.2d 395 (Tex.Cr.App.1990). The trial court acted correctly when it denied appellant's motion to quash the two enhancement paragraphs of his indictment. The Court of Appeals properly affirmed this decision. We overrule appellant's ground for review.

In the state's petition for discretionary review, it argues that the Court of Appeals erred when it held that Tex.R.App.P., Rule 83 1 permitted the appellant to appeal the trial court's decision overruling his motion to quash the indictment after the state had filed its brief seeking dismissal of this point because of appellant's failure to perfect his appeal in a proper manner. On September 8, 1988, appellant pled guilty, and his punishment was assessed in accordance with a plea bargain agreement with the state. When appellant gave his written notice of appeal on September 13, 1988, it did not comply with the requirements of Tex.R.App.P., Rule 40(b)(1) 2. In that notice, appellant stated only,

"Now comes R.J.G., attorney for Gene Autry Jones and hereby gives notice of appeal in the above case. Defendant requests the Court order a transcript of this proceeding, as defendant is too poor to pay for said transcript."

On October 26, 1988, the state sent a certified copy of its response to appellant's brief to the appellant. In that brief, the state pointed out the defect in appellant's notice of appeal. On October 28, 1988, fifty-one days after he was sentenced and forty-six days after filing his invalid notice of appeal, appellant filed an amended notice of appeal which complied with Rule 40(b)(1) by specifying the matters raised in his pretrial motion and stating the trial court granted him permission to appeal. On October 28, 1988, both briefs were forwarded by the District Clerk to the Third Court of Appeals. From these facts, it is apparent that appellant's September 13th notice of appeal was invalid, that he filed no request with the Court of Appeals to file an amended notice of appeal, and that he did not request an extension of time "reasonably explaining the need for such extension." See Tex.R.App.P, Rule 41(b)(2).

The Court of Appeals held because appellant "promptly corrected" the defect after it was called to his attention, the appeal was properly before that court. Jones, supra, at 331. The Court of Appeals went on to explain that this case is distinguishable from a case where a defendant completely fails to file a written notice of appeal. The Court of Appeals asserts that Tex.R.App.P., Rule 83 "may be employed to correct a defect in the written notice of appeal," and relies upon the cases of Robertson v. State, 760 S.W.2d 836 (Tex.App.-Austin, 1988) and Shute v. State, 744 S.W.2d 96 (Tex.Cr.App.1988). Jones, supra, at 331.

We note, initially, that neither Robertson nor Shute are authority for the Court of Appeals' holding on the scope of Rule 83. Both cases simply stand for the rule that a court of appeals is without jurisdiction to hear an appeal where an invalid notice of appeal had been given to the trial court (in both cases, the defendants merely gave an oral notice of appeal to the trial court). Robertson, supra, at 836; and Shute, supra, at 97. Having found that the Court of Appeals' decision in this matter was without authoritative support from this Court, we turn to the merits of the state's argument.

The state contends that appellant's notice of appeal only invoked the appellate jurisdiction of the Court of Appeals to consider the limited issues of jurisdictional defects or matters arising after the entry of appellant's plea, and not on the merits of appellant's pre-trial motion. The state bases this argument on the unequivocally mandatory language of Rule 40(b)(1). The state alleges that since appellant's notice of appeal failed to comply with the mandatory requirements of Rule 40(b)(1), it had no validity in regard to the non-jurisdictional defects raised in appellant's pretrial motion to quash the indictment. We agree with the state that appellant failed to preserve any non-jurisdictional defects for his appeal, but not because the Court of Appeals lacked jurisdiction.

Once a notice of appeal has been filed in a case, the Court of Appeals has obtained jurisdiction of that cause. Art. V., § 6, Texas Constitution, confers jurisdiction of all non-death penalty cases on the courts of appeals. This has been recognized by the courts of appeals, though there is some disagreement among the lower courts. In Campbell v. State, 747 S.W.2d 65 (Tex.App.--Houston [1 Dist.], 1988), Justice Smith held that the Court of Appeals had jurisdiction even though the defendant's notice of appeal did not fully comply with the Rules of Appellate Procedure. Campbell, supra, at 66-67. In Young v. State, 759 S.W.2d 680 (Tex.App.-Dallas, 1988), Justice Hecht reached a similar conclusion, that jurisdiction is set within the Court of Appeals once a notice of appeal has been filed. Contra, Johnson v. State, 747 S.W.2d 568 (Tex.App.--Houston [14 Dist.], 1988); Jackson v. State, 775 S.W.2d 422 (Tex.App.--Houston [14 Dist.], 1989).

However, we disagree with Justices Smith and Hecht on the issue of the extent of a defendant's right to appeal once he has filed his notice and jurisdiction of that appeal has been conferred. Rule 40(b)(1) is a restrictive rule. It regulates the extent of the grounds upon which a defendant can appeal. The method of regulation is the nature of the notice filed by a defendant. If he wishes to appeal a matter which is nonjurisdictional in nature or occurred prior to the entry of his plea, then he must conform to the requirements of the statute and include within his notice what the grounds of appeal are and the fact that he has received the permission of the trial court to appeal those matters. See note 2, infra. This Court reached a similar result when reviewing an appeal under former Art. 40.02, the precursor to Rule 40(b)(1). Morris v. State, 749 S.W.2d 772 (Tex.Cr.App.1986). In the instant case, appellant failed to file a notice of appeal which would permit him to appeal the nonjurisdictional matter complained of here.

The dissent argues that Rule 83 gives the Court of Appeals power to permit appellant to amend his notice of appeal out of time, and relies on footnote 2 in Miles v. State, 780 S.W.2d 215, at 216 (Tex.Cr.App.1989). We note that footnote 2 in Miles was dicta in that case, and do not find that it is controlling in the instant case.

Appellant argues the case of Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) is authority for us sanctioning the Court of Appeals' decision to waive the defect in his notice of appeal. We find Evitts to be distinguishable. In Evitts, the defendant filed a timely written notice...

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