Feathers Jr., Bruce Earl v. The State of Texas--Appeal from 122nd District Court of Galveston County

Dismissed and Opinion filed August 22, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-02-00188-CR;

14-02-00189-CR

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BRUCE EARL FEATHERS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 01CR1468 & 01CR1469

M E M O R A N D U M O P I N I O N

Appellant pled guilty to the offenses of aggravated sexual assault of a child and indecency with a child on February 7, 2002. In accordance with the terms of plea bargain agreements with the State, the trial court sentenced appellant in each cause on February 7, 2002, to eight years= confinement in the Texas Department of Criminal Justice, Institutional Division. Because we have no jurisdiction over these appeals, we dismiss.

To invoke an appellate court=s jurisdiction over an appeal, an appellant must give timely and proper notice of appeal. White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). Appellant filed timely general notices of appeal that did not comply with the requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 25.2(b)(3). Rule 25.2(b)(3) provides that when an appeal is from a judgment rendered on a defendant=s plea of guilty or nolo contendere and the punishment assessed does not exceed the punishment recommended by the State and agreed to by the defendant, the notice of appeal must: (1) specify that the appeal is for a jurisdictional defect; (2) specify that 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. Id.

On April 26, 2002, appellant filed amended notices of appeal, specifying that he intended to challenge the trial court=s denial of his motions for new trial regarding the voluntariness of his plea in each cause. Appellant argued in his amended notices that Cooper v. State, 45 S.W.2d 77 (Tex. Crim. App. 2001) contemplates appealing from the denial of a motion for new trial because it mentions that a motion for new trial is a proper vehicle for challenging the voluntariness of the plea. In his brief on appeal, appellant claims the denial of his motions for new trial occurred post-judgment and the denial is therefore, appealable.

In support of his argument, appellant cites Davis v. State, 832 S.W.2d 356 (Tex. App.BDallas 1992, no pet.). Davis held that, even if an appellant fails to include the grounds of appeal from rule 40(b)(1) [now 25.2(b)(3)], an appellate court may nonetheless consider error occurring after entry of the guilty plea, such as denial of a motion for new trial. Id., at 358. The dissenting opinion noted that the majority holding allowed Aprocedural maneuvering@ and rendered the notice requirements of rule 40(b)(1) meaningless. Id. at 360 (Kinkeade, J., dissenting).

We disagree with the majority holding in Davis. In State v. Riewe, 13 S.W.3d 408, 413 (Tex. Crim. App. 2000), the Court of Criminal Appeals observed that, Aonce jurisdiction is lost, the court of appeals lacks the power to invoke any rule to thereafter obtain jurisdiction.@ The court cited to Jones v. State, 796 S.W.2d 183, 186-87 (Tex. Crim. App. 1990), in which the court held that a defendant who had filed a general notice of appeal could not later amend the notice of appeal because the jurisdiction of an appellate court cannot be retroactively obtained.

This court has followed Riewe in Betz v. State, 36 S.W.3d 227 (Tex. App.BHouston [14th Dist.] 2001, no pet.). In Betz, this court held that, because the appellant=s original notice of appeal failed to invoke our jurisdiction, this court had no jurisdiction and an amended notice of appeal could not retroactively create jurisdiction. Id. at 229.

Appellant contends that Riewe is distinguishable from the instant case because Riewe was a State appeal in which the State attempted to amend its notice of appeal after the State=s brief had been filed. We do not find this distinction determinative. Although the State in Riewe did file its amended notice of appeal late, the Court of Criminal Appeals did not base its holding on the timeliness of the amendment. Instead, the court held that the State=s original notice of appeal failed to invoke the appellate court=s jurisdiction and jurisdiction, once lost, could not be retroactively obtained by the filing of an amended notice. 13 S.W.3d at 413.

Appellant further argues that, although Cooper appears to preclude appeals from guilty pleas, it impliedly permits appeals from the denial of a motion for new trial because it notes that a motion for new trial is one of the vehicles available for litigating claims of involuntary pleas of guilty. Cooper does state that meritorious claims of involuntary pleas may be raised by motion for new trial and habeas corpus. 45 S.W.3d at 82. Nonetheless, we do not construe this statement to mean that an appellant may sidestep the court=s holding that, under Rule 25.2(b), an appellant may not challenge the voluntariness of the plea. See id. at 83. Here, appellant attempts to circumvent Cooper by challenging the denial of his motions for new trial, which raised a claim of involuntariness of his plea.

Because appellant=s original notices of appeal did not comply with the requirements of Rule 25.2(b)(3), we are without jurisdiction to consider any of appellant=s issues, including the voluntariness of the plea. See Cooper, 45 S.W.2d at 83. Appellant=s amended notices of appeal do not retroactively invoke our jurisdiction. See Riewe, 13 S.W.3d at 413.

Accordingly, we dismiss the appeals for want of jurisdiction.

PER CURIAM

Judgment rendered and Opinion filed August 22, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).