Jason Page v. State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-00-180-CR

JASON PAGE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 9131-A

O P I N I O N

Jason Victor Page pleaded guilty to aggravated robbery. In accordance with a plea agreement, the court sentenced him to twelve years imprisonment. Page filed a pro se notice of appeal specifying that he is appealing a jurisdictional defect. See Tex. R. App. P. 25.2(b)(3)(A). The court appointed counsel to represent Page on appeal.

Page s appellate counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967). Counsel notified Page that he had filed an Anders brief, sent him a copy of the record, and informed him that he had the right to file a pro se brief or other response. Counsel certified to this Court that he had taken these actions. See Sowels v. State, 45 S.W.3d 690, 693-94 (Tex. App. Waco 2001, no pet.). Because counsel did not adequately advise Page that the time for filing his brief or response commenced upon the filing of counsel s Anders brief, we set the due date for Page s brief or response in a per curiam order. See Page v. State, No. 10-00-180-CR, slip op. at 3, 2001 Tex. App. LEXIS 7975, at *4 (Tex. App. Waco Nov. 28, 2001, order). Page has not filed a brief or response.

Because Page s notice of appeal specifies that he is appealing only a jurisdictional defect, we may not consider any grounds for reversal other than jurisdictional ones under Rule of Appellate Procedure 25.2(b)(3). // See Tex. R. App. P. 25.2(b)(3); Morris v. State, 749 S.W.2d 772, 774-75 (Tex. Crim. App. 1986) (holding that no other matter [is] appealable under notice of appeal limited to issues raised by pre-trial motions and dismissing appeal asserting only legal sufficiency complaint); Morris v. State, 892 S.W.2d 444, 446-47 (Tex. App. San Antonio 1995, pet. ref d) (dismissing appellant s points related to constitutionality of sentence under notice of appeal limited to issues raised by pre-trial motions); Levels v. State, 866 S.W.2d 103, 106 (Tex. App. Beaumont 1993, no pet.) (dismissing appellant s sufficiency complaint raised under notice of appeal limited to issues raised by pre-trial motions); see also White v. State, No. 123-01, slip op. at 4, 2001 Tex. Crim. App. LEXIS 124, at *6 (Tex. Crim. App. Dec. 5, 2001) ( Dismissal of an issue or the entire matter is appropriate unless the form of the notice of appeal is proper to perfect appeal as to the issue or matter. ). Counsel has identified one potential jurisdictional defect for our review.

According to counsel, Page has requested [him to] challenge the constitutionality of the Penal Code, in that it contained matters not germaine to the title of the bill, in violation of article III, section 35 of the Texas Constitution. A challenge to the facial constitutionality of the statute under which the defendant was convicted presents an issue which affects the jurisdiction of the trial court. See Bader v. State, 15 S.W.3d 599, 603 (Tex. App. Austin 2000, pet. ref d); see also Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987) (appellate court should have addressed constitutional challenge raised in appeal following plea-bargained guilty plea).

Article III, section 35 provides as follows:

35. Subjects and titles of bills

Sec. 35. (a) No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject.

(b) The rules of procedure of each house shall require that the subject of each bill be expressed in its title in a manner that gives the legislature and the public reasonable notice of that subject. The legislature is solely responsible for determining compliance with the rule.

(c) A law, including a law enacted before the effective date of this subsection, may not be held void on the basis of an insufficient title.

Tex. Const. art. III, 35.

The Court of Criminal Appeals has construed subsection (c) of this constitutional provision to mean that [c]ourts no longer [have] the power to declare an act of the Legislature unconstitutional due to the insufficiency of the caption. Meshell v. State, 739 S.W.2d 246, 251 (Tex. Crim. App. 1987) (quoting Baggett v. State, 722 S.W.2d 700, 702 (Tex. Crim. App. 1987)); accord Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex. 2000); Garay v. State, 940 S.W.2d 211, 216 (Tex. App. Houston [1st Dist.] 1997, pet. ref d). Thus, we do not have jurisdiction to declare the Penal Code unconstitutional on the basis of a deficient caption.

The indictment presented in Page s case invested the court with jurisdiction. See Tex. Const. art. V, 12(b); Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995). The trial court has jurisdiction of felony offenses such as that charged in the indictment. See Skillern v. State, 890 S.W.2d 849, 859 (Tex. App. Austin 1994, pet. ref d). Accordingly, our review of the record reveals no jurisdictional defects.

For these reasons, we conclude that Page s appeal presents no issues of arguable merit. Thus, we affirm the judgment. Unless appellate counsel has been allowed to withdraw, counsel must advise Page of the result of the appeal and of his right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed February 6, 2002

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