Robert Charles Foster v. The State of Texas--Appeal from 202nd District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00197-CR
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ROBERT CHARLES FOSTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 76-F-88
Before Morriss, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N

Robert Charles Foster has filed a document designed to serve as a notice of appeal, and which also asks this court to permit him to pursue an untimely appeal from his conviction. According to the information provided by Foster, he was convicted by a jury of aggravated robbery and, on January 21, 1977, was sentenced to forty-five years' imprisonment. Foster states that he had, in open court, stated his intention to appeal, but that he was denied his right to perfect an appeal. He states that even though he has since filed various habeas corpus proceedings, he has never been afforded the opportunity to address claims of error in the underlying trial of the cause.

His conviction predates the creation of the Rules of Appellate Procedure. In 1977, Tex. Code Crim. Proc. Ann. art. 44.08(a) (1) governed the means by which a defendant could exercise his right to appeal. As acknowledged by the court in Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988), under that statute, oral notice was sufficient to perfect the appeal. However, at the time of his conviction, this court did not have criminal appellate jurisdiction; thus, we could not enforce our jurisdiction over an attempted appeal dating from 1977, because at that time, we had no jurisdiction over any criminal appeal.

Over twenty-five years have elapsed since Foster's conviction. We have no jurisdiction over a criminal appeal filed before criminal jurisdiction was ceded to this court. Because of the nature and age of this claim and the apparent lack of supporting documentation for this twenty-five-year-old claim, we conclude that his remedy, if any, is through the Texas Court of Criminal Appeals.

If the jurisdiction of a court of appeals is not properly invoked, the power of the appellate court to act is as absent as if it did not exist. White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). Further, where a court of appeals lacks jurisdiction over the appeal, it lacks the authority to utilize other rules in an attempt to create jurisdiction where none exists. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996).

Where we lack jurisdiction over an appeal, we have no authority to dispose of the purported appeal in any manner other than by dismissing it for want of jurisdiction. Id.; see Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993). The motion to perfect untimely appeal is overruled.

The appeal is dismissed for want of jurisdiction.

 

Ben Z. Grant

Justice

 

Date Submitted: October 21, 2002

Date Decided: October 22, 2002

 

Do Not Publish

1. Repealed by Act of May 27, 1985, 69th Leg., R.S., ch. 685, 4, 1985 Tex. Gen. Laws 2472-73.