MARBUT v. STATE (2001)

OPINION

Bonnie Sue Marbut pled guilty to the offenses of hindering secured creditors and theft by check.   Pursuant to a plea bargain, Marbut was placed on deferred adjudication.   The State filed a motion to proceed to final adjudication and, after a hearing, the court granted the State's motion, found Marbut guilty and sentenced her to 18 months' imprisonment.   The day after sentencing, Marbut filed a general notice of appeal.

After the notice of appeal was filed, but within thirty days of sentencing, the court granted Marbut permission to appeal.   The order granting permission is in the clerk's record.   The notice of appeal was not amended to reflect that Marbut was granted permission to appeal.   We are required to dismiss the appeal for want of jurisdiction.

Where a defendant pleads guilty or nolo contendere with the benefit of a plea agreement and the punishment assessed does not exceed the agreed punishment, a defendant's notice of appeal must comply with the extra-notice requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure.   tex.R.App. 25.2(b)(3);  Craddock v. State, 32 S.W.3d 886, 887 (Tex.App.-Waco 2000, no pet.).

Undoubtedly, Marbut's general notice of appeal did not comply with Rule 25.2(b)(3).   However, many of our sister courts have held that an order contained in the clerk's record granting permission to appeal coupled with a general notice of appeal is substantial compliance with the requirements of Rule 25.2(b)(3).   See Finch v. State, 2001 WL 253441, *2 (Tex.App.-Fort Worth March 15, 2001, no pet. h.);  Gomes v. State, 9 S.W.3d 170, 172 (Tex.App.-Houston [14th Dist.] 1999, no pet.);  Salinas v. State, 9 S.W.3d 338, 339 (Tex.App.-San Antonio 1999, no pet.);  Flores v. State, 888 S.W.2d 193, 196 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd);  Brown v. State, 830 S.W.2d 171, 173 (Tex.App.-Dallas 1992, pet. ref'd).   The courts finding substantial compliance with the Rule rely on Riley, a 1992 Court of Criminal Appeals opinion.   See Riley v. State, 825 S.W.2d 699, 701 (Tex.Crim.App.1992).   We believe that Riley was effectively overruled by the Court of Criminal Appeals in State v. Riewe, 13 S.W.3d 408, 410-13 (Tex.Crim.App.2000).

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 it did not contain two statutorily required certifications that (1) the appeal was not taken for delay and (2) that the evidence suppressed by the trial court was of “substantial importance” in the case.   Id. at 411-13.   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.  Id. at 413;  Tex.R.App. P. 25.2(d).

 According to Riewe, the only amendments permitted under Rule 25.2(d) are non-jurisdictional amendments.  Id. Marbut has filed an amended notice of appeal citing Rule 25.2(d) as authority.   Under Riewe, the amended notice of appeal cannot confer jurisdiction on this Court.  Craddock v. State, 32 S.W.3d 886, 887 (Tex.App.-Waco 2000, no pet.).   Additionally, we believe that Riewe prohibits us from looking to the clerk's record to find documents to satisfy the criteria of Rule 25.2(b)(3).   The Court of Criminal Appeals reaffirmed in Riewe that prior case law prevents a court of appeals from using another appellate rule to create jurisdiction where none existed.  Riewe, 13 S.W.3d at 412;  See also Sipple v. State, 36 S.W.3d 592, 594 (Tex.App.-Waco 2000, no pet.) (citing Slaton v. State, 981 S.W.2d 208 (Tex.Crim.App.1998);  Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996)).   The Court has routinely held that a court of appeals cannot use any rule to create jurisdiction without a proper notice of appeal.  Sipple, 36 S.W.3d at 594 (citing Jones v. State, 796 S.W.2d 183 (Tex.Crim.App.1990)).  “The point is that, once jurisdiction is lost, the court of appeals lacks the power to invoke any rule to thereafter obtain jurisdiction.”  Id.

Thus, when Marbut filed the defective notice of appeal, it did not invoke our jurisdiction because it failed to comply with Rule 25 .2(b)(3).   Because we have no jurisdiction to take any action in a case until our jurisdiction has been properly invoked, we cannot use the doctrine of “substantial compliance” to obtain jurisdiction.   We therefore have no jurisdiction over this appeal and dismiss it.

This is another in a growing line of cases in which the defendant has been denied the right of appeal because of an unsound interpretation of the Rules of Appellate Procedure.

We have dismissed numerous appeals for failure to comply with the extra-notice provisions of Rule 25.2(b)(3).  Tex.R.App. P. 25.2(b)(3).   Twice, I dissented from published opinions:  Craddock v. State, 32 S.W.3d 886, 888 (Tex.App.-Waco 2000, no pet.)  (Vance, J., dissenting), where we dismissed the appeal without allowing an opportunity to amend, and Sipple v. State, 36 S.W.3d 592, 594 (Tex.App.-Waco 2000, pet. filed) (Vance, J., dissenting), where dismissal resulted in spite of an amended notice of appeal on file.¹

In a concurring opinion in Casas v. State, I said:

Although I remain convinced that Craddock v. State was incorrectly decided, the court correctly applies that decision in this appeal.  Craddock v. State, 32 S.W.3d 886 (Tex.App.-Waco, 2000).   Accordingly, I join the court's opinion and will hereafter do so in similar circumstances.

Casas v. State, 33 S.W.3d 874, 875 (Tex.App.-Waco 2000, pet. ref'd) (Vance, J., concurring).   Now, however, the Court of Criminal Appeals has refused the petition for discretionary review in Casas . So, I write again.

Rule 25.2(d) of the Texas Rules of Appellate Procedure provides the mechanism to correct a defective notice of appeal:

(d) Amending the Notice.   An amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court at any time before the appellant's brief is filed.   The amended notice is subject to being struck for cause on the motion of any party affected by the amended notice.   After the appellant's brief is filed, the notice may be amended only on leave of the appellate court and on such terms as the court may prescribe.

Tex.R.App. P. 25.2(d).   The rule as written allows Marbut to amend her notice of appeal because her brief has not been filed.  Id.

Rule 25.2(d) was adopted by the Court of Criminal Appeals.   Its meaning is plain.   Until the Court either repeals the rule or explains why the provision allowing amendment has no application, I will continue to believe that dismissal is improper when we do not allow the defendant an opportunity to amend the notice of appeal as allowed by the Rule. When a procedure traps too many unsuspecting appellants, it is time to examine the reasons why.

Furthermore, such a dismissal ultimately results in a waste of judicial resources.   See Craddock, 32 S.W.3d at 890;  Sipple, 36 S.W.3d at 596.   It also runs counter to the goal of harmonizing the interpretation and application of the combined appellate rules in civil and criminal cases.   See id.

Because of the number of defendants who are being denied their right to appellate review without justification and in violation of the clear terms of Rule 25.2(d), I concur only because of our prior decisions cited above.

FOOTNOTES

1.   State v. Riewe, 13 S.W.3d 408, 414 (Tex.Crim.App.2000), on which Craddock and Sipple are based, involved a state's notice of appeal, which is governed by article 44.01of the Code of Criminal Procedure rather than Rule 25.2 of the appellate rules.

GRAY, Justice.

Justice VANCE concurring.