Martinez v. State

• Decision Date: 17 May 2001
• Citation: 50 S.W.3d 572
• Parties: (Tex.App.-Fort Worth 2001) RAFAEL MARTINEZ, APPELLANT v. THE STATE OF TEXAS, STATE NO. 2-00-237-CR
• Court: Texas Court of Appeals

Page 572

50 S.W.3d 572 (Tex.App.-Fort Worth 2001)

RAFAEL MARTINEZ, APPELLANT v. THE STATE OF TEXAS, STATE

NO. 2-00-237-CR

COURT OF APPEALS OF TEXAS, FORT WORTH

MAY 17, 2001

FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

Francisco Hernandez, Jr., Fort Worth, Attorney for Appellant.

Tim Curry, Criminal District Attorney, Chuck Mallin and Curtis Jenkins, Assistant District Attorneys, Fort Worth, Attorneys for State.

PANEL D: DAY, LIVINGSTON, and DAUPHINOT, JJ.

OPINION

SAM J. DAY, JUSTICE

Rafael Martinez attempts to appeal the trial court's judgment placing him on deferred adjudication community supervision for failing to stop and render aid. We grant the State's motion to dismiss the appeal for want of jurisdiction.

Background

On April 24, 2000, pursuant to a plea bargain agreement, appellant pleaded guilty to the offense of failure to stop and render aid and was placed on two years' deferred adjudication community supervision. Appellant filed a timely motion for new trial, but, after a hearing, the motion was denied. On June 22, appellant filed a general notice of appeal, and, on October 31, he filed an amended notice of appeal stating he had received permission from the trial court to appeal his guilty plea. Attached to the amended notice as Exhibit A is a copy of appellant's request for permission to appeal and the trial court's October 24, 2000 order granting permission.

Because appellant's original notice of appeal did not conform to the mandatory requirements of rule 25.2(b)(3), in that it does not specify the appeal is from 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, and because the amended notice was filed outside the time to perfect his appeal, we informed appellant's counsel by letter dated November 7 that we were concerned that his notices failed to invoke our jurisdiction. Appellant's counsel responded by letter brief, urging that notwithstanding the extra-notice requirements of rule 25.2(b)(3), he could raise a challenge to the voluntariness of his plea on appeal. He acknowledges that this court has held contrary to his position, but contends Flowers is still good law. See Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex. App.--Fort Worth 1998, no pet.); see also Flowers v. State, 935 S.W.2d 131, 133 (Tex. Crim App. 1996) (holding that compliance with former rule 40(b)(1) was not necessary to raise a voluntariness challenge on appeal). Also before the court is the State's motion to dismiss the appeal, in which the State argues that neither appellant's general notice of appeal nor his amended notice confers jurisdiction on this court.

Discussion

Jurisdiction concerns the power of a court to hear and determine a case. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Appellate jurisdiction is invoked by giving timely and proper notice of appeal. Riewe, 13 S.W.3d at 410. Rule 25.2 of the rules of appellate procedure governing perfection of an appeal in a criminal case provides in relevant part as follows:

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 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.

Tex. R. App. P. 25.2(a)-(b).

In Villanueva, we held that to invoke this court's jurisdiction over an appeal from a negotiated guilty plea, a notice of appeal must conform to the mandatory notice requirements of rule 25.2(b)(3). Villanueva, 977 S.W.2d at 695; see also Tex. R. App. P. 25.2(b)(3); Hulshouser v. State, 967 S.W.2d 866, 868 (Tex. App.--Fort Worth 1998, pet. ref'd, untimely filed); Williams v. State, 962 S.W.2d 703, 704-05 (Tex. App.--Fort Worth 1998, no pet.) (op. on PDR). We further concluded that these requirements must be met to challenge the voluntariness of a plea. Villanueva, 977 S.W.2d at 696; see also Northington v. State, 43 S.W.3d 546, 548 (Tex.App.--Fort Worth 2001, pet. filed). Moreover, the court of criminal appeals has recently resolved the long-standing division on the voluntariness issue and held that in a plea-bargained, felony case, rule 25.2(b)(3) does not permit the voluntariness of the plea to be raised on appeal. Cooper v. State, 45 S.W.3d 77, 87 (Tex.Crim.App.2001).

In the instant case, appellant's guilty plea was the result of a plea bargain in which he bargained for and received deferred adjudication. Thus, appellant was required to comply with the extra-notice requirements of rule 25.2(b)(3). See Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996) (applying former rule 40(b)(1)); Hulshouser, 967 S.W.2d at 868; Williams, 962 S.W.2d at 704-05. His failure to do so deprives this court of jurisdiction over the appeal.

Further, appellant's attempt to cure the defect by filing an amended notice of appeal 190 days after his judgment of conviction is of no effect. In Riewe, the court of criminal appeals held that the State, as appellant, did not invoke the jurisdiction of the court of appeals by its original notice of appeal, because the notice did not contain two statutorily required certifications that (1) the appeal was not taken for delay and (2) the evidence suppressed by the trial court was of "substantial importance" in the case. Riewe, 13 S.W.3d at 411-13.¹ 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 rule 25.2(d), which did contain the previously omitted certifications, could not retroactively confer jurisdiction on the court of appeals.² Id. at 413. Specifically, the court said:

It is true that Rule 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 case law prevents a court of appeals from using an appellate rule to create 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 current Rule 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 to Rule 25.2(d) cannot be jurisdictional amendments.

Id. at 413-14 (emphasis added) (footnotes omitted).

According to Riewe, the only amendments permitted under rule 25.2(d) are nonjurisdictional amendments. The amendments appellant must make to his notice of appeal are jurisdictional amendments. Villanueva, 977 S.W.2d at 695-96; see also Davis v. State, 870 S.W.2d 43, 46-47 (Tex. Crim. App. 1994) (holding that notice requirements under former rule 40(b)(1) are jurisdictional); Craddock v. State, 32 S.W.3d 886, 887 (Tex. App.--Waco 2000, no pet.) (holding that notice requirements under rule 25.2(b)(3) are jurisdictional). Because appellant's original notice did not initially confer jurisdiction on this court, we now have no power to accept an amended notice to obtain jurisdiction retroactively. See Riewe, 13 S.W.3d at 413-14; Cohen v. State, 41 S.W.3d 223, 227-28 (Tex.App.--Fort Worth 2001, no pet.); Salgado v. State, 36 S.W.3d 911, 912 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (op. on reh'g); Craddock, 32 S.W.3d at 887; Robinson v. State, 24 S.W.3d 438, 439 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd); Happ v. State, 958 S.W.2d 474, 475 (Tex. App.--Fort Worth 1997, no pet.).³

Finally, counsel proposes that we follow the supreme court's ruling in Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997), that a bona fide attempt to invoke the jurisdiction of the court of appeals is sufficient to establish the appellate court's jurisdiction over the case. The court of criminal appeals, however, has specifically held that, in criminal cases, jurisdiction cannot be substantially invoked; it either attaches or it does not. Olivo, 918 S.W.2d at 525. If a criminal defendant wishes to appeal following a negotiated plea, the notice of appeal must comply with the requirements of rule 25.2(b)(3). See id. at 524 (applying former rule 40(b)(1)). We are constrained by the rules and controlling authority of the court of criminal appeals on this matter.

Conclusion

We conclude that appellant's original notice of appeal fails to invoke the jurisdiction of this court and that we have no power to permit him to amend his notice to confer jurisdiction on this court retroactively. Accordingly, we grant the State's December 1, 2000 motion and dismiss the appeal for want of jurisdiction.

DAUPHINOT, J. filed a concurring opinion.

DAUPHINOT, Justice, concurring.

INTRODUCTION

The unique facts of this case are a cause for concern. Appellant plea-bargained for deferred adjudication...