Sherman v. State

• Decision Date: 01 July 1999
• Docket Number: No. 05-97-00621-CR,05-97-00621-CR
• Citation: 12 S.W.3d 489
• Parties: (Tex.Crim.App.-Dallas 1999) MARCUS CARROLL SHERMAN, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Criminal Appeals

Page 489

12 S.W.3d 489 (Tex.Crim.App.-Dallas 1999)

MARCUS CARROLL SHERMAN, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-97-00621-CR

In The Court of Appeals Fifth District of Texas at Dallas

July 1, 1999

On Appeal from the 292nd District Court Dallas County, Texas Trial Court Cause No. F95-43528-HIV

[Copyrighted Material Omitted]

Before Justices Lagarde, Moseley, and Bridges

OPINION

Opinion By Justice Lagarde

Appellant Marcus Carroll Sherman was indicted for and, on his negotiated plea of guilty, found guilty of deadly conduct by discharging a firearm in the direction of an occupied habitation. The trial court assessed punishment at five years' confinement. In three points of error on appeal from the resulting judgment, appellant complains of three violations of due process. For reasons given below, we dismiss this appeal for lack of jurisdiction.

Factual and Procedural Background

On March 28, 1995, appellant pleaded guilty to a charge of deadly conduct in exchange for ninety days' confinement, a $500 fine, and deferred adjudication probation for five years. On August 28, 1996, the State moved to adjudicate guilt. On March 14, 1997, the trial court signed an order adjudicating guilt and sentencing appellant to five years' confinement. On the same date, appellant filed a general notice of appeal.

If a negotiated plea of guilty results in deferred adjudication, rule 25.2(b)(3) of the Texas Rules of Appellate Procedure applies to the appeal of a judgment of conviction after adjudication of guilt. Watson v. State, 924 S.W.2d 711, 713-14 (Tex. Crim. App. 1996) (construing predecessor rule). On June 15, 1998, appellant filed his brief on the merits of the appeal. Simultaneously, appellant, through his attorney, filed an amended notice of appeal. The amended notice stated, in pertinent part, "The appeal is for a jurisdictional defect; to specify the substance of the appeal was raised by written motion and ruled on before trial; and/or the trial court granted the defendant permission to appeal." In other words, appellant's amended notice of appeal complies in form with the extra-notice requirements of rule 25.2(b)(3). Under the new rules of appellate procedure, effective September 1, 1997, an appellant may amend his notice of appeal as a matter of right before his brief is filed. See Tex. R. App. P. 25.2(d).¹

This case was submitted on appellant's original brief, which raised three due process issues. Appellant asserts that he was denied due process because: (1) the trial court did not conduct a hearing before adjudicating him guilty; (2) the trial court did not conduct a punishment hearing before sentencing him; and (3) if the trial court did conduct such hearings, appellant cannot obtain a record of those hearings.²

Rule 25.2(b)(3)

This Court has jurisdiction to determine whether it has jurisdiction. State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996) (citing Ex parte Paprskar, 573 S.W.2d 525, 527 (Tex. Crim. App. 1978)). The jurisdictional issue we must resolve is: Does a specific notice of appeal complying only in form, but not in substance, with the extra-notice requirements of rule 25.2(b)(3) properly invoke this Court's jurisdiction? We conclude that it does not.

Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure sets out the form and sufficiency required of a notice of appeal to properly invoke this Court's appellate jurisdiction over an appeal from a judgment entered on an appellant's negotiated plea of guilty. 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(b)(3). The rule does not mean, however, that our jurisdiction is properly invoked by the filing of a specific notice of appeal complying only in form with the extra- notice requirements of the rule. To the contrary, if an appellant cannot, in good faith, file a specific notice of appeal complying, both in form and in substance, with the extra-notice requirements of rule 25.2(b)(3), he cannot successfully invoke this Court's jurisdiction. See Manuel v. State, 994 S.W.3d 658, 661-62 (Tex.Crim.App.1999) (the appellant's notice of appeal could not truthfully state that the trial court had given permission for the appeal).

This Court has already so held in construing the extra-notice requirements of the predecessor to rule 25.2(b)(3). See Solis v. State, 890 S.W.2d 518, 520 (Tex. App.-Dallas 1994, no pet.) (construing the extra-notice requirements of former rule 40(b)(1)). Statements required by the rule to be in the notice of appeal must be true to confer jurisdiction over nonjurisdictional issues. Solis, 890 S.W.2d at 520. Mere allegations are not enough to support a claim. An appellant must develop a record to substantiate his claims. Solis, 890 S.W.2d at 520.

Today, we specifically hold that in an appeal to which rule 25.2(b)(3) applies, in order to properly invoke this Court's jurisdiction over the appeal, there must be compliance, both in form and in substance, with the extra-notice requirements of the rule. Compliance with rule 25.2(b)(3) is not merely a matter of form, it is a matter of substance as well. Not only must the specific notice of appeal recite the applicable extra-notice requirements, the record must substantiate the recitations in the notice of appeal. Noncompliance, either in form or in substance, will result in a failure to properly invoke this Court's jurisdiction over an appeal to which rule 25.2(b)(3) applies. Absent proper invocation of this Court's jurisdiction, this Court has no jurisdiction over an appeal. Without jurisdiction over an appeal, the only action this Court can take is to dismiss the appeal. See Slaton, 981 S.W.2d at 210.

Ethical Considerations

A lawyer shall not knowingly make a false statement of material fact to a tribunal. Tex. Disciplinary R. Prof'l Conduct 3.03(a)(1), reprinted in Tex. Gov't. Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar. R. art. X, § 9). Nothing in rule 25.2(b)(3) abrogates this rule of professional conduct or diminishes the duty of an attorney, as an officer of the court, to be candid with the tribunal. Yet appellant's attorney filed the amended notice of appeal on the very day she tendered her original brief. She necessarily knew, therefore, that the trial court had not given permission to appeal and that the brief did not raise issues involving pretrial rulings on written motions. To prepare her brief, she had reviewed the record and, if she could find where the record reflects the trial court's permission to appeal, she did not so inform this Court even when given the express opportunity to do so in a postsubmission brief. Giving appellant's attorney the benefit of the doubt that she was motivated by the best interest of her client to be duly diligent, we will indulge the presumption - this time - that appellant's attorney understood rule 25.2(b)(3) to require only rote, mechanical recitations to invoke this Court's jurisdiction. We will not be so indulgent again.

Supplemental Briefing

Concerned with whether this Court's jurisdiction over appellant's appeal had been properly invoked, after submission of this case we ordered the parties to brief the issue of this Court's jurisdiction over this appeal. The State complied promptly with a brief arguing that we do not, in fact, have jurisdiction. Appellant belatedly filed a "supplemental brief." Rather than strictly complying with our order to address this Court's jurisdiction over his appeal, appellant's supplemental brief contains seven supplemental issues, attempting to recast his due process arguments as jurisdictional arguments, and raising for the first time the issue of the voluntariness of his plea. Appellant did not brief why we had jurisdiction over the appeal at the time of submission; appellant improperly attempts to entirely rebrief. To the extent that appellant's supplemental issues exceed the scope of our postsubmission briefing order, we do not address them. To the extent they can be read to implicate jurisdiction, we address them as follows.

Notwithstanding the fact that appellant filed an amended notice of appeal stating both that "the substance of the appeal was raised by written motion and ruled on before trial . . . and . . . that the trial court granted the defendant permission to appeal," appellant does not argue that this Court's jurisdiction was invoked for either of those reasons. Appellant's only attempt to argue that this Court has jurisdiction focuses on that part of the amended notice of appeal stating "[t]he appeal is for a jurisdictional defect."

Appellant argues that the trial court's failure to conduct hearings is a jurisdictional issue. Appellant notes that section 5(b) of article 42.12 of the Texas Code of Criminal Procedure entitles a defendant to an adjudication hearing before the trial court adjudicates guilt and assesses punishment, following deferment of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 1999). Appellant then concludes that article 42.12, section 5(b), "[l]ike article 42.12, [section] 10,"³ is a jurisdictional provision.

Appellant cites two cases, entirely inapposite. The first holds simply that a trial court's extension of the period of deferred adjudication is not void if the extension occurs before the expiration of the original probationary period. Bailey v. State, 888 S.W.2d 600, 603-04 (Tex. App.-Beaumont 1994, no pet.). The second case is Furrh v. State, 582 S.W.2d 824, 826-28 (Tex. Crim. App. 1979) (op. on mot. for reh'g), to which appellant adds a parenthetical, "must follow statute or court loses jurisdiction to revoke." In Furrh, the State filed a motion to revoke probation. On the basis of that motion, the trial court modified the terms of the defendant's probation. The court then...