Olivo v. State

• Decision Date: 27 March 1996
• Docket Number: No. 0442-95,0442-95
• Citation: 918 S.W.2d 519
• Parties: Jesus OLIVO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 519

918 S.W.2d 519

Jesus OLIVO, Appellant, v. The STATE of Texas, Appellee.

No. 0442-95.

Court of Criminal Appeals of Texas,

En Banc.

March 27, 1996.

John H. Hagler, Dallas, for appellant.

Lori L. Ordiway, Assist. Dist. Atty., Dallas, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Appellant was convicted of murder, and the jury assessed punishment at forty years of confinement. Appellant's notice of appeal was due to be filed on June 27, 1994. Appellant filed his notice of appeal on July 12, 1994, the fifteenth day after it was due. Appellant's motion for extension of time, styled a "Motion for Leave to File Late Notice of Appeal," was filed on September 27, 1994. The Court of Appeals dismissed the appeal for lack of jurisdiction. Olivo v. State, 894 S.W.2d 58 (Tex.App.--San Antonio 1994). We granted Appellant's petition for discretionary review to address the following ground:

The Court of Appeals erred in holding that the court lacked jurisdiction to entertain this appeal when the notice of appeal was filed within the fifteen day grace period but the motion for leave to file the late notice of appeal was filed after the expiration of the fifteen day grace period.

he Court of Appeals held that a late notice of appeal may be considered timely filed, and thus invokes the appellate court's jurisdiction, if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed within fifteen days of the last day allowed for filing the notice of appeal, and (3) the motion for extension of time is granted by the appellate court. Id. at 59 (citing Tex.R.App.Pro. 41(b)(2) ¹ and Charles v. State, 809 S.W.2d 574 (Tex.App.--San Antonio 1991, no pet.)). The court noted it had previously held that compliance with the first two requirements is jurisdictional. Ibid. (citing Charles, 809 S.W.2d at 576).

ppellant observes that other courts of appeals have held that a notice of appeal filed within the fifteen-day grace period invokes jurisdiction even without an accompanying motion for extension of time. See Sanchez v. State, 885 S.W.2d 444 (Tex.App.--Corpus Christi 1994, no pet.); Boulos v. State, 775 S.W.2d 8 (Tex.App.--Houston [1st] 1989, pet. ref'd). Appellant urges this Court to adopt the reasoning set out in those opinions, specifically, that jurisdiction is authorized by Tex.R.App.Pro. 2(b) ² and 83 ³. Appellant points out that the Texas Supreme Court has adopted a liberal policy in allowing appellants to amend appeal bonds and cash deposits in lieu of bonds. See Linwood v. NCNB Texas, 885 S.W.2d 102 (Tex.1994); Grand Prairie Indep. Sch. Dist. v. Southern Parts, 813 S.W.2d 499 (Tex.1991). Appellant maintains that a similarly liberal policy should be adopted by this Court to protect a defendant's right to appeal and right to effective assistance of counsel. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

he State counters that the San Antonio Court of Appeals correctly applied the clear language of Rule 41(b)(2). The State maintains that Sanchez and Boulos erroneously relied on Rules 2(b) and 83 to suspend the requirements of Rule 41(b)(2). The State notes that another court of appeals has rejected the holdings of Sanchez and Boulos. See Jones v. State, 900 S.W.2d 421 (Tex.App.--Texarkana 1995, no pet.). The State seeks to distinguish the Texas Supreme Court cases relied on by Appellant because they involve amendments to timely filed defective appellate instruments. Finally, the State argues that Evitts v. Lucey is distinguishable because the present case involves appellate jurisdiction.

In Jiles there was no written notice of appeal. The court in Jiles recognized that this Court had held in Shute v. State, 744 S.W.2d 96 (Tex.Cr.App.1988), that a court of appeals does not err in dismissing an appeal for lack of jurisdiction when there is no written notice of appeal. However, the Court of Appeals sought to distinguish Shute because this Court in Shute did not discuss whether a court of appeals could follow some other course of action. Jiles, 751 S.W.2d at 621. The Court of Appeals held it was authorized to accept jurisdiction under Rules 2(b) and 83. Ibid.

The court in Sanchez, like those in Boulos and the present case, was faced with a notice of appeal filed within the fifteen-day grace period but an untimely motion for extension of time. The Court of Appeals stated that the filing of the notice of appeal within the fifteen-day period necessarily implied a proper request for extension of time under Rule 41(b)(2). Sanchez, 885 S.W.2d at 445. The Corpus Christi Court of Appeals observed:

The rules of appellate procedure, as embodied by rule 83 and rule 2(b), favor a policy of having the Texas courts of appeals address cases on their merits, rather than allowing the courts to close their doors to appellants who, through no fault of their own, fail to find their way successfully through the labyrinth of procedure.

Id. at 446.

The court held that the filing of the notice of appeal within the fifteen-day grace period vested that court with jurisdiction and that the lack of a timely filed motion for extension of time was curable under Rule 83, as the lack of a timely motion for extension of time was a procedural irregularity. Ibid.

We disagree with the Corpus Christi Court of Appeals' characterization of the lack of a timely filed motion for extension of time to file notice of appeal. It is not a mere procedural irregularity; it is a jurisdictional defect.

A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction. Rodarte v. State, 860 S.W.2d 108 (Tex.Cr.App.1993); Shute, 744 S.W.2d 96. A defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. Rule 41(b)(1). Rule 41(b)(2) allows for an exception: A court of appeals may grant an extension of time to file notice of appeal if the notice is filed within fifteen days after the last day allowed and, within the same period, a motion is filed in the court of appeals reasonably explaining the need for the extension of time.

Therefore, we agree with the San Antonio and El Paso Courts of Appeals that a late notice of appeal may be considered timely so as to invoke a court of appeals' jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Jones, 900 S.W.2d at 422; Olivo, 894 S.W.2d at 59; Charles, 809 S.W.2d at 576. When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Charles, 809 S.W.2d at 576.

In considering Appellant's argument urging reliance on Rule 2(b), we first observe that the Texarkana Court of Appeals rejected the contention that Rule 2(b) allows a court faced with a situation similar to the present case to acquire jurisdiction. In doing so, the court cited Rule 2(a), which provides:

These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals, the Court of Criminal Appeals or the Supreme Court as established by law.

Jones, 900 S.W.2d at 423.

In Shute and Rodarte, we held that a court of appeals has no jurisdiction without a timely, written notice of appeal pursuant to Rules 40(b)(1) and 41(b)(1). In Garza v. State, 896 S.W.2d 192 (Tex.Cr.App.1995), we held that a court of appeals has no authority to summarily reconsider and correct or modify its opinion or judgment beyond the fifteen-day period provided in Tex.R.App.Pro. 101 after a petition for discretionary review is filed, because at that point exclusive jurisdiction rests with this Court. If the Court of Appeals in Jones was correct in suggesting that Rule 2(a) prevents a court from using Rule 2(b) to suspend an appellate rule time limit as that would improperly extend the court's jurisdiction, then Rule 2(a) would also prevent Rules 40(b)(1), 41(b)(1), and 101 from limiting a court of appeals' jurisdiction. Moreover, under this interpretation, Rule 2(a) would prevent Rule 41(b)(2) from extending a court of appeals' jurisdiction even if a notice of appeal and motion for extension of time were filed in compliance with Rule 41(b)(2).

Jurisdiction concerns the power of a court to hear and determine a case. Ex parte Watson, 601 S.W.2d 350, 351 (Tex.Cr.App.1980). Jurisdiction is the right of a court to adjudicate the subject matter in a given case. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980). A court of appeals' jurisdiction is comprised of subject matter jurisdiction and personal jurisdiction, that is, jurisdiction over a specific appeal involving specific litigants. Cf. Id. (discussing jurisdiction of the subject matter and jurisdiction over the person in the trial context). Establishment of jurisdiction by law and invocation or attachment of jurisdiction in accordance with procedural rules are two distinct concepts.

Examples of laws that establish jurisdiction of courts of appeals are Tex. Const. Art. V, § 1 (courts in which judicial power is vested), Tex. Const. Art. V, § 6 (courts of appeals); V.T.C.A. Gov't Code §§ 21.001 (inherent power and duty of courts), 22.220 (civil jurisdiction), 22.201 (courts of appeals districts), 22.221 (writ power), 73.001-73.002 and 22.202(i) (transfer of courts of appeals' cases); and Articles 4.01 (courts with criminal jurisdiction) and 4.03 (courts of appeals), V.A.C.C.P.

This Court's rulemaking authority is found in Tex. Const. Art. V, § 31(c) ⁴, V.T.C.A. GOV'T CODE 22.108 , AND ARTICLE 44.33(A)⁵,...