Arnold Eugene Gotch v. The State of Texas--Appeal from 174th District Court of Harris County

Dismissed and Opinion filed February 6, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00048-CR

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ARNOLD EUGENE GOTCH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 879,829

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

After a guilty plea, appellant was convicted of the offense of possession with intent to manufacture or deliver a controlled substance. On May 14, 2002, in accordance with the terms of a plea bargain with the State, the trial court sentenced appellant to fifteen years= confinement in the Texas Department of Criminal Justice--Institutional Division. On May 14, 2002, appellant filed a timely, general notice of appeal. This Court assigned the appeal cause number 14-02-00485-CR. On October 3, 2002, because appellant had not complied with the requirements of rule 25.2(b)(3) of the Texas Rules of Appellate Procedure, this Court issued the following opinion dismissing the appeal:

Appellant pled guilty on April 3, 2002, to the offense of possession with intent to manufacture or deliver a controlled substance. In accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant to fifteen years= confinement in the Texas Department of Criminal Justice, Institutional Division. Because we have no jurisdiction over this appeal, 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 a timely general notice 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. The time for filing a proper notice of appeal has expired; thus appellant may not file an amended notice of appeal to correct jurisdictional defects. State v. Riewe, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000). Because appellant=s notice 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 v. State, 45 S.W.2d 77, 83 (Tex. Crim. App. 2001) (holding that appellant who files general notice of appeal may not appeal voluntariness of negotiated plea).

Appellant filed a response to this Court=s letter of intent to dismiss, stating that the record of the plea should affirmatively attest to the trial court=s recognition that appellant did not waive his right to appeal the adverse ruling on the motion to suppress and that the trial court expressly gave permission to appeal this adverse ruling.

We have reviewed the record and it contains no reference to appellant=s desire to appeal the denial of the motion to suppress. Furthermore, nothing in the record indicates the trial court gave appellant permission to appeal the denial of the motion to suppress. Although the trial judge made a handwritten notation on the judgment reciting the date of filing of the notice of appeal, this is insufficient to meet the requirements of Rule 25.2(b)(3). Johnson v. State, Nos. 0956-01 & 0957-01, 2002 WL 31018589 at *2 (Tex. Crim. App. Sept. 11, 2002).

Accordingly, we dismiss the appeal for want of jurisdiction.

On October 17, 2002, appellant filed a motion for rehearing. On October 24, 2002, a supplemental clerk=s record was filed containing an AOrder Nunc Pro Tunc Regarding Trial Court=s Permission to Appeal,@ signed October 8, 2002. Although the record was supplemented to show that appellant did in fact have the trial court=s permission to appeal, this Court overruled the motion for rehearing filed November 7, 2002, because the notice of appeal did not comply with rule 25.2(b)(3). On January 8, 2003, appellant filed a motion to amend his notice of appeal. In support of the motion, appellant cited Bayless v. State, No. 56-01, 2002 WL 31838802 (Tex. Crim. App. December 18, 2002). We agree that pursuant to Bayless, an appellant may amend a timely general notice of appeal at any time prior to the filing of his brief. Id. However, in this case, appellant did not move to amend his defective notice of appeal until after this Court=s plenary power had expired. See Tex. R. App. P. 19.1(b) (stating that plenary power of court of appeals expires thirty days after court overrules all timely filed motions for rehearing). Because our plenary power had expired approximately one month before appellant attempted to amend his notice of appeal, we denied the motion to amend as moot on January 16, 2003. After our plenary power expired, we could not vacate or modify our judgment. See Tex. R. App. P. 19.3.

On January 8, 2003, the same date appellant filed his motion to amend in this Court, appellant filed a second notice of appeal with the trial court. This second notice was also from the sentence imposed May 14, 2002. In other words, appellant has attempted to file a new appeal of the conviction despite this Court=s dismissal of his original appeal. On January 14, 2003, the clerk=s record in this new appeal was filed in this Court. The clerk=s record contains the October 8, 2002, ANunc Pro Tunc@ order, but refers this Court to appellate cause number 14-02-00485-CR for the remaining documents. When we received the clerk=s record, we opened the appeal under cause number 14-03-00048-CR.

Again, we must dismiss. The second notice of appeal is untimely. A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial. See Tex. R. App. P. 26.2(a)(1). A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Under those circumstances it can take no action other than to dismiss the appeal. Id.

If the notice of appeal filed January 8, 2003, was an attempt to file an Aamended@ notice of appeal, it fails on that basis as well.[1] First, appellant=s motion to file an amended notice of appeal was denied as moot by this Court on January 16, 2003 B we had no power to permit appellant to file an amended notice. Second, according to the Texas Rules of Appellate Procedure, an amended notice of appeal is to be filed in the appellate court. Tex. R. App. P. 25.2(f). Appellant did not file the notice in this Court.

The appeal from the conviction in trial court cause number 879,829 has already been dismissed. The second notice of appeal filed January 8, 2003, is untimely. If the notice filed January 8, 2003, was an attempt to file an amended notice of appeal, it was without effect. Accordingly, the appeal is ordered dismissed.[2]

PER CURIAM

Judgment rendered and Opinion filed February 6, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] There is no indication, other than the circumstances surrounding this case, that this second notice of appeal was intended to be an Aamended@ notice. It is not entitled Aamended@ notice, nor does it state within the body of the document that it is an Aamended@notice. Moreover, as we stated, the second notice was not filed in this Court, as required for filing an amended notice of appeal; rather, it was filed in the trial court. Finally, the Harris County District Clerk forwarded this case as a new appeal.

[2] We note that when the clerk=s record was filed in this appeal, it did not contain certification of defendant=s right of appeal as required by rule 25.2(d). See Tex. R. App. P. 25.2(d). However, given the posture of this appeal and our disposition, we find it unnecessary to require the trial court to correct this defect.