Luera v. State , 2001 Tex. App. LEXIS 8565 ( 2001 )

TOM GRAY, Justice,

concurring.

I agree with the majority’s decision to dismiss Luera’s appeal for want of jurisdiction. I do not, however, agree with the majority’s decision that substantial compliance can satisfy the requirements of Rule 25.2(b)(3). First, the majority has once again stepped outside the boundaries of what is necessary to decide the opinion. A decision about substantial compliance is not necessary to the disposition of the appeal. Second, for the same reasons as stated in our original Marbut opinion¹, purportedly withdrawn by the Marbut opinion cited by the majority, I believe the doctrine of substantial compliance cannot satisfy the notice of appeal requirements in the Rules of Appellate Procedure.

With these comments, I concur in the result reached by the majority’s opinion.

APPENDIX

IN THE TENTH COURT OF APPEALS

No. 10-01-090-CR

No. 10-01-091-CR

BONNIE SUE MARBUT, Appellant v. THE STATE OF TEXAS, Appellee

From the 66th District Court, Hill County, Texas, Trial Court Nos. 31,023 & 31,191

Appeal dismissed

Opinion delivered and filed June 13, 2001

Before Chief Justice Davis, Justice Vance, and Justice Gray.

OPINION

TOM GRAY, Justice

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, 66 S.W.3d 323, 324-25 (Tex.App.-Fort Worth 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. refd). 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. Mar-but 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.

Justice VANCE concurring.

1 . See Marbut v. State, 10-01-090 & 091-CR (Tex.App.-Waco June 13, 2001), attached as an Appendix to this opinion.