Denise Rita Sipple v. State of Texas

    IN THE

TENTH COURT OF APPEALS

No. 10-00-233-CR

        DENISE RITA SIPPLE,

                                                                                                        Appellant

        v.

        THE STATE OF TEXAS,

                                                                                                        Appellee

From the County Criminal Court at Law No. 13

Harris County, Texas

Trial Court # 0981972

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O P I N I O N

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          Denise Rita Sipple pled guilty, pursuant to a plea bargain, to driving while intoxicated. She was placed on community supervision for one year. The next day, Sipple filed a general notice of appeal. We notified Sipple by letter that her notice of appeal did not comply with Rule 25.2(b)(3). See Tex. R. App. P. 25.2(b)(3). We offered her an opportunity to amend the notice of appeal. Sipple responded with an amended notice of appeal which she filed with the district clerk. We dismiss this appeal for want of jurisdiction.

Jurisdiction

          Where a defendant pleads guilty or nolo contendere with the benefit of a plea bargain 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). In this situation, a general notice of appeal is insufficient to confer jurisdiction on a court of appeals. Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994); Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994) (both construing former appellate rule 40(b)(1)).

          We have construed Rule 25.2(b)(3) in the same manner; that is, compliance with the rule is jurisdictional. See Tressler v. State, 986 S.W.2d 381 (Tex. App.—Waco 1999, no pet.). Other courts of appeals have also accepted this construction. See Robinson v. State, 24 S.W.3d 438 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Sherman v. State, 12 S.W.3d 487 (Tex. App.—Dallas 1999, no pet.); Villanueva v. State, 977 S.W.2d 693 (Tex. App.—Fort Worth 1998, no pet.). Thus, if a notice of appeal does not comply with Rule 25.2(b)(3), we do not have jurisdiction over the appeal. Tressler, 986 S.W.2d at 382. So well established is the jurisdictional nature of the requirement of Rule 25.2(b)(3) that we ceased publishing cases dismissed for failure to comply with the rule. See eg. Anderson v. State, No. 10-99-00192-CR (Tex. App.—Waco August 2, 2000)(not designated for publication); Steffy v. State, No. 10-98-00-265-CR (Tex. App.—Waco April 21, 1999)(not designated for publication).

 

  Merits of the Case

          Defendants have frequently attempted to bypass the specific extra-notice requirements by utilizing another rule to give the courts jurisdiction where it had not otherwise been properly invoked. Just as many times, the Court of Criminal Appeals has stated that a court of appeals cannot use another rule to create jurisdiction where none exists. Thus, the Court of Criminal Appeals has made it clear that the courts of appeals cannot use other rules such as the new Rule 2, former Rule 2(b) or former Rule 83 to consider the merits of an appeal where the notice of appeal was untimely. See 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 also held that the courts of appeals cannot use former Rule 83 to permit an out of time amendment of a notice of appeal. Jones v. State, 796 S.W.2d 183 (Tex. Crim. App. 1990).

          In 1997, a provision was added to the new rules of appellate procedure that allows for amendments of a notice of appeal. Rule 25.2(d) provides:

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). We attempted to craft a procedure under this rule to allow a defendant to amend an otherwise defective notice of appeal if the defect was one that could be cured. See Tressler, 986 S.W.2d at 382. However, the Court of Criminal Appeals has recently construed this provision and reaffirmed that prior case law prevents a court of appeals from using another appellate rule to create jurisdiction where none existed. State v. Riewe, 13 S.W.3d 408, 413 (Tex. Crim. App. 2000). The Court stated that it does not matter which rule a court of appeals tries to use, former rules 2(b) or 83 or the current rule 25.2(d); the court cannot create jurisdiction without a proper notice of appeal. Id. “The point is that, once jurisdiction is lost, the court of appeals lacks the power to invoke any rule to thereafter obtain jurisdiction.” Id. Although the Riewe appeal involved the State’s compliance with its own extra-notice requirements, it appears that the Court wanted to settle the entire issue by stating, “any amendments made pursuant to Rule 25.2(d) cannot be jurisdictional amendments.” Id. at 413-414. The Court has merely re-affirmed the method of invoking the jurisdiction of appellate courts in plea bargained cases; it has not abridged, modified, or enlarged a substantive right of the defendant. See eg. Villanueva, 977 S.W.2d at 696, n.7. Thus, the portion of Tressler discussing the procedure to allow an amendment of a notice of appeal has been disapproved and will no longer be followed.

Conclusion

          Sipple’s general notice of appeal did not comply with Rule 25.2(b)(3). Even though Sipple filed an amended notice of appeal after a letter from this Court, the time for perfecting his appeal has elapsed and this jurisdictional defect could not be corrected. See Riewe, 13 S.W.3d at 413-14. Accordingly, we do not have jurisdiction over this appeal and dismiss it for want of jurisdiction.

 

                                                             TOM GRAY

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

          (Justice Vance dissenting)

Appeal dismissed

Opinion delivered and filed November 8, 2000

Do not publish

95, (Tex. App.—Waco July 7, 2004, orig. proceeding).  Discount Rental petitioned the Texas Supreme Court for a writ of mandamus.  That petition was also denied without an opinion which elaborated upon the reason for the denial.  Carter v. Disc. Rental, Inc., No. 04-0571, 2004 Tex. LEXIS 829 (Tex. Sept. 10, 2004).

          Because this Court granted a temporary stay, the original sale date had passed and was not rescheduled until after the Supreme Court denied the petition for writ of mandamus.  The basis for the Supreme Court’s denial is not clear.  It could have been because there was not then pending an order to go forward with the forced sale, or because Discount Renal had not otherwise shown the need for a writ of mandamus, or for some other reason.

          The trial court has now rendered another order regarding the sale of the property and refused to order that it be returned as required by Civil Practice and Remedies Code § 34.021 if the judgment supporting an execution sale is set aside and property has not been sold.

          Discount Rental now seeks to stop the pending execution sale at auction of its property when there is no judgment to support the forced sale.

          This mandamus presents issues that are more complex than what appears at first glance.  Just some of the questions are:

1.     Is a party’s agreement to an order the equivalent of a contract?

2.     If there is no Rule 11 agreement supporting the grounds upon which an order can be entered, but a party agrees to the terms of the order, is that, alone, binding or can a party revoke its agreement before the terms of the order are fulfilled?

 

3.     Does the fact that the Carters were entitled to execute on the property, and all the parties were agreeing to the manner of conducting the sale and distribution of the proceeds, as opposed to the sale itself, change any of the analysis for answering the foregoing question?

 

4.     If there is no separate agreement, outside the agreement to the manner of conducting an execution sale and distribution of the proceeds, does the reversal of the judgment upon which the forced sale is to be conducted remove the court’s authority to order the forced sale?

 

Ultimately there seem to be two questions to be answered here:

1.     Did Discount Rental irrevocably agree to the sale such that the Carters are entitled to compel specific enforcement of the sale without having to prevail on a breach of contract claim?

 

2.     Even if the sale, after reversal of the judgment upon which it is based, is a wrongful execution sale of the property, has Discount Rental shown that the remedy of a suit for wrongful execution upon the property (because there is no judgment to support the forced sale) is an inadequate remedy thus authorizing issuance of the writ of mandamus?

Conclusion

 

Because Discount Rental has not shown that a suit for wrongful levy of execution would be an inadequate remedy, if the sale is conducted as scheduled, I concur in the denial of the motion for rehearing.

 

TOM GRAY

Chief Justice

 

Before Chief Justice Gray,

          Justice Vance, and

Justice Reyna

Opinion delivered and filed March 16, 2005

[CV06]