Lewis Dennis Richardson v. State of Texas ( 2001 )


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  •                                    NO. 07-01-0007-CR
    NO. 07-01-0008-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL A
    DECEMBER 18, 2001
    ______________________________
    LEWIS DENNIS RICHARDSON, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    _________________________________
    FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
    NO. 40,170-A; 40,171-A; HONORABLE DAVID GLEASON, JUDGE
    _______________________________
    Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
    In appellate cause No. 07-01-0007-CR appellant Lewis Dennis Richardson appeals
    from his adjudication of guilt for aggravated assault on a public servant, the revocation of
    his community supervision, and sentence of incarceration for 30 years. In appellate cause
    No. 07-01-0008-CR appellant appeals from his adjudication of guilt for aggravated assault
    with a deadly weapon, the revocation of his community supervision, and sentence of
    incarceration for 15 years. We dismiss for lack of jurisdiction.
    On August 16, 1999, appellant pled guilty in cause No. 40,170-A in the 47th District
    Court of Potter County (“the trial court”) to the charge of aggravated assault on a public
    servant. Honoring a plea bargain between the State and appellant, the trial court deferred
    adjudicating appellant guilty and placed him on community supervision for ten years.
    On August 16, 1999, appellant also pled guilty in cause No. 40,171-A in the trial
    court to the charge of aggravated assault with a deadly weapon. Again honoring a plea
    bargain between the State and appellant, the trial court deferred adjudicating appellant
    guilty and placed him on community supervision for ten years.
    On March, 2, 2000, the State filed a Motion to Proceed With Adjudication of Guilt
    on Original Charge in each of the causes. On March 8, 2000, an alias capias was issued
    in each cause for the arrest of appellant on the respective motions to adjudicate. Each
    alias capias was executed and appellant was arrested on July 10, 2000.
    The State’s motions to adjudicate were heard together on December 7, 2000. The
    trial court adjudicated appellant guilty as to each charge. Appellant was sentenced to
    incarceration in the Texas Department of Criminal Justice-Institutional Division for 30 years
    in cause No. 40,170-A and for 15 years in cause No. 40,171-A. On December 29, 2000,
    appellant filed a general notice of appeal in each cause. On July 17, 2001, appellant filed
    an Amended Notice of Appeal in each cause. In each amended notice he states that the
    appeal is for jurisdictional defect “as a result of the failure to issue capias or warrant for
    2
    arrest, as required.” He jointly briefed and jointly presents his appeals from the convictions
    and sentences. The issues presented address each cause in the same manner.
    Appellant asserts that the trial court lacked both jurisdiction and authority to proceed
    on the State’s motions to adjudicate and to revoke his community supervision because
    proper issuance and service of an alias capias or warrant for his arrest was not effected
    as to each motion. The State’s response is threefold: (1) the record does not factually
    support appellant’s contentions; (2) jurisdiction of the appellate court has not been
    invoked, and the appeals should be dismissed for lack of jurisdiction; and (3) the trial court
    had jurisdiction to hear all the State’s motions regardless of the issuance of capias or
    arrest warrant as to the particular motion in question.
    There is no constitutional right to appellate review of criminal convictions. Perez
    v. State, 
    938 S.W.2d 761
    , 762 (Tex.App.--Austin 1997, pet. ref’d). The right to appeal is
    conferred by the legislature, and a party may appeal only that which the legislature has
    authorized. Galitz v. State, 
    617 S.W.2d 949
    , 951 (Tex.Crim.App. 1981). In a criminal
    case, appeal is perfected by timely filing a notice of appeal. TEX . R. APP . P. 25.2(a).1 A
    defective attempt to perfect appeal from a conviction fails to invoke the jurisdiction of the
    appellate court. See Olivo v. State, 
    918 S.W.2d 519
    , 523 (Tex.Crim.App. 1996). The
    appellate court then has no jurisdiction over the appeal and must dismiss the matter. See
    Slaton v. State, 
    981 S.W.2d 208
    , 210 (Tex.Crim.App. 1998).
    1
    Further references to the Texas Rules of Appellate Procedure will be by reference
    to “TRAP_.”
    3
    The notice of appeal must be filed within 30 days after the day sentence is imposed
    or after the day the trial court enters an appealable order, unless a timely motion for new
    trial is filed. TRAP 26.2(a). The notice of appeal must be in writing and must contain the
    necessary jurisdictional allegations. See TRAP 25.2(b); State v. Riewe, 
    13 S.W.3d 408
    ,
    410 (Tex.Crim.App. 2000). An untimely notice of appeal or a notice of appeal which does
    not conform to jurisdictional requirements or contain jurisdictional assertions will not invoke
    the jurisdiction of the court of appeals. See 
    id. at 411,
    413-14. If an appeal is not timely
    perfected, a court of appeals can take no action other than to dismiss the appeal. See
    
    Slaton, 981 S.W.2d at 210
    . TRAP 25.2(d) does not permit an appellate court to grant a
    motion to amend the notice of appeal outside the time limits to perfect appeal if the
    amendments sought to be made to the notice of appeal are jurisdictional amendments.
    See 
    Riewe, 13 S.W.3d at 413-14
    . For, once jurisdiction is lost, an appellate court lacks
    the power to invoke any rule to thereafter obtain jurisdiction. 
    Id. at 413.
    The requirements of TRAP 25.2(b)(3) apply to a defendant who plea bargains for
    deferred adjudication. See Vidaurri v. State, 
    49 S.W.3d 880
    , 883 (Tex.Crim.App. 2001)
    (application of TRAP 25.2(b)(3) is triggered by nature of original plea bargain process, not
    whether defendant pled true or not true to allegations of motion to revoke probation);
    Brown v. State, 
    943 S.W.2d 35
    , 41 (Tex.Crim.App. 1997) (construing former TRAP
    40(b)(1)). In the absence of some express agreement between the prosecutor and the
    defendant limiting the punishment to be assessed in the event of a subsequent
    adjudication of defendant, when the prosecutor recommends deferred adjudication in
    4
    exchange for a defendant’s plea of guilty or nolo contendere and deferred adjudication is
    granted, then the trial judge does not exceed the recommendation if, upon proceeding to
    an adjudication of guilt, the judge later assesses any punishment within the range allowed
    by law. Watson v. State, 
    924 S.W.2d 711
    , 714 (Tex.Crim.App. 1996); see Ditto v. State,
    
    988 S.W.2d 236
    , 239-40 (Tex.Crim.App. 1999).
    In the matters before us, appellant’s original general notices of appeal did not serve
    to invoke our jurisdiction. See 
    Vidaurri, 49 S.W.3d at 883
    and 
    Riewe, 13 S.W.3d at 413-14
    . The amended notices were not timely to invoke our jurisdiction, and we may not
    allow amendment of the notices of appeal if the amendments sought to be made are
    jurisdictional amendments and are outside the time for perfecting of appeal. See 
    Riewe, 13 S.W.3d at 413-14
    . Because our jurisdiction has not been invoked, we must dismiss the
    appeals for lack of jurisdiction. See 
    Slaton, 981 S.W.2d at 210
    .
    Accordingly, we dismiss the appeals for lack of jurisdiction.
    Phil Johnson
    Justice
    Do not publish.
    5
    

Document Info

Docket Number: 07-01-00008-CR

Filed Date: 12/18/2001

Precedential Status: Precedential

Modified Date: 9/7/2015