Jackson, Lois M. v. State ( 2000 )

NUMBER 13-99-598-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

LOIS M. JACKSON

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 36th District Court of San Patricio County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez

On July 16, 1999, appellant, Lois Jackson, entered an agreed plea of guilty to the offense of possession of marihuana.⁽¹⁾ Pursuant to the plea bargain, the trial court sentenced appellant to five years imprisonment, probated for five years, a $1,000.00 fine, and restitution in the amount of $140.00. On August 20, 1999, the trial court signed the judgment. On September 14, 1999, appellant filed a handwritten letter with the trial court stating she was "writing to appeal for a new trial." In her letter, appellant complained of inadequate representation by trial counsel. The trial court clerk forwarded appellant's letter to this Court as appellant's notice of appeal. See Tex. R. App. P. 25.2(c). No other notice appears in the record.

By three points of error, appellant complains of ineffective assistance of counsel. Appellee, the State of Texas, in response, claims this Court should dismiss the appeal for want of jurisdiction because appellant's general notice provided no basis for an appeal from the plea-bargained judgment. We agree and dismiss for want of jurisdiction.

Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure provides that following an agreed plea of guilty, and where the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice of appeal must specify that (1) the appeal is for a jurisdictional defect, (2) the substance of the appeal was raised by written motion and ruled on before trial, or (3) state that the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(3).

Because appellant entered an agreed plea of guilty, and because the punishment assessed did not exceed the punishment recommended by the prosecutor, rule 25.2(b)(3) limits our jurisdiction over this appeal. First, appellant asserts no jurisdictional defects, claiming only ineffective assistance of counsel.⁽²⁾ Second, she does not contend that her appeal is from an issue raised by written motion and ruled on before trial. Finally, appellant's notice of appeal does not set out that the trial court granted her permission to pursue her appeal.⁽³⁾

We further note that under rule 25.2(d), an appellate court may grant leave of court allowing an appellant to amend her notice of appeal. See Tex. R. App. P. 25.2(d)(after brief filed notice may be amended only on leave of appellate court). However, the Texas Court of Criminal Appeals recently stated that rule 25.2(d) does not permit an appellate court to grant a motion to amend if the amendment sought to be made to the notice of appeal is a jurisdictional amendment. See State v. Riewe, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000). Once jurisdiction is lost, an appellate court lacks the power to invoke any rule to thereafter obtain jurisdiction. Id. at 413.

In the present case, the judgment was signed on August 20, 1999. Appellant filed her timely general notice of appeal on September 14, 1999. See Tex. R. App. P. 26.2(a)(1) (notice of appeal must be filed within thirty days after day sentence imposed or trial court enters appealable order). On December 2, 1999, the trial court granted appellant permission to appeal. Appellant's brief was filed January 31, 2000. No leave to file the trial court's order granting permission to appeal has been filed, and even had leave been requested, we could not allow such a late jurisdictional amendment. See Riewe, 13 S.W.3d at 412.

Because we conclude this Court is without jurisdiction, we dismiss this appeal.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 31st day of August, 2000.

1. See Tex. Health & Safety Code Ann. § 481.121 (Vernon Supp. 2000).

2. The Texas Court of Criminal Appeals has ruled that claims of ineffective assistance of counsel are not jurisdictional. See Lyon v. State, 972 S.W.2d 832, 736 (Tex. Crim. App. 1994) (citing Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981) (jurisdiction is power of court over "subject matter" of case, conveyed by statute or constitutional provision, coupled with "personal" jurisdiction over accused)).

3. This Court recently joined the majority of Texas appellate courts in concluding that the voluntariness of a plea can be challenged on appeal even when an appellant files only a general notice of appeal, and thus fails to comply with the specific notice requirements of Texas Rule of Appellate Procedure 25.2(b)(3). See Marshall v. State, No. 13-99-00153-CR, 2000 Tex. App. LEXIS 5427 (Corpus Christi August 10, 2000, no pet. h.) (designated for publication).

On appeal, appellant argues ineffective assistance of counsel. She asserts three issues; two involving a conflict of interest that was allegedly the result of her trial counsel representing multiple defendants, and one involving her counsel's failure to file pretrial motions. Appellant does not urge that the alleged lack of effective assistance rendered her plea involuntary. Thus, we conclude the issue of voluntariness of the plea is not before this Court.