Bonnie Sue Marbut v. State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-01-091-CR

BONNIE SUE MARBUT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 31,191

DISSENTING OPINION

We have no jurisdiction of this appeal. Let me count the ways. Three.

First: Texas Rule of Appellate Procedure 25.2(b)(3);

Second: Texas Code of Criminal Procedure 42.12(5)(b); and

Third: Texas Rule of Appellate Procedure 50.

Because the majority rules on the merits of the complaint, rather than dismissing it for want of jurisdiction, I respectfully dissent.

RULE OF APPELLATE PROCEDURE 25.2(b)(3)

Because this is an appeal of a judgment from a plea bargain, in which the punishment assessed did not exceed the punishment agreed to, Rule 25.2(b)(3) is applicable. The full text of the applicable rule provides:

(a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal. In a death-penalty case, however, it is unnecessary to file a notice of appeal.

(b) Form and Sufficiency of Notice.

(1) Notice must be given in writing and filed with the trial court clerk.

(2) Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order, and, if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01.

(3) But if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

Tex. R. App. P. 25.2. The requirement for specific contents of the notice, specified in 25.2(b)(3), applies to an appeal from the proceeding in which the State moves to adjudicate the defendant s guilt. Vidaurri v. State, 49 S.W.3d 880, 883 (Tex. Crim. App. 2001).

Marbut s notice of appeal does not comply with Rule 25.2(b)(3). Marbut did receive the trial court s permission to appeal, but permission was not received until after the notice of appeal was filed. No amended notice of appeal was filed within the time permitted by the rule. Only a timely filed notice of appeal which complies with the rule invokes our jurisdiction. State v. Riewe, 13 S.W.3d 408, 411 (Tex. Crim. App. 2000). Marbut s notice of appeal was and is defective and did not invoke our jurisdiction.

CODE OF CRIMINAL PROCEDURE Art. 42.12(5)(b)

This is an appeal of a determination to adjudicate Marbut s guilt. No appeal may be taken from this determination. Tex. Code Crim. Proc. Ann. art. 42.12(5)(b) (Vernon Supp. 2002). The sum and substance of the hearing and the issues about which Marbut complains are that the trial court should not have proceeded on an unauthorized motion to adjudicate her guilt because she was not competent to assist in her defense of the motion to adjudicate. We are a court of limited jurisdiction. Our jurisdiction is defined by the legislature. The legislature has affirmatively negated any argument that we have jurisdiction of an appeal from this type proceeding. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992).

RULE OF APPELLATE PROCEDURE 50

We have previously issued an opinion in this cause, with one justice concurring, holding Marbut s notice of appeal was defective and her alleged substantial compliance with rule 25.2(b)(3) was ineffective to give us jurisdiction. Tex. R. App. P. 25.2(b)(3). We subsequently denied a motion for rehearing. Marbut filed a petition for discretionary review. A majority of the court issued an order, calling it an opinion, purportedly withdrawing the original opinions. Marbut v. State, 58 S.W.3d 241 (Tex. App. Waco 2000). A copy of the withdrawn opinions are attached to the dissenting opinion in Luera. Luera v. State, 2001 Tex. App. LEXIS 8565.

Rule 50 provides:

Within 30 days after a petition for discretionary review has been filed with the clerk of the court of appeals that delivered the decision, a majority of the justices who participated in the decision may summarily reconsider and correct or modify the court's opinion or judgment. If the court's opinion or judgment is corrected or modified, the original opinion or judgment must be withdrawn and the modified or corrected opinion or judgment must be substituted as the opinion or judgment of the court. The original petition for discretionary review is dismissed by operation of law. Any party may then file with the court of appeals a petition for discretionary review seeking review of the corrected or modified opinion or judgment under Rule 68.2.

Tex. R. App. P. 50.

The majority acknowledged in a footnote what they were issuing was not really an opinion, it was only an order. Marbut v. State, 58 S.W.3d 241, 242 (Tex. App. Waco 2000) ( We style this an opinion because of the wording of Rule 50. Tex. R. App. P. 50. Ordinarily, we would deny such a motion by an order. ). But because only an opinion from the court of appeals would have the desired legal effect, they attempted to elevate form over substance in an effort to retain jurisdiction over this appeal. Calling an order an opinion does not make it so. Thus, the majority s efforts did not dismiss the earlier petition by operation of law. We have no jurisdiction to issue a new or modified opinion more than 30 days after the petition for discretionary review has been filed. Ex parte Brashear, 985 S.W.2d 460 (Tex. Crim. App. 1998).

CONCLUSION

For any one of these three reasons, we have no jurisdiction of this case. Accordingly, I would dismiss this appeal for want of jurisdiction. This result is not as harsh as it may at first appear. If Marbut wants to complain that her conviction is void because she was not competent, she has the remedy of a petition for writ of habeas corpus. White v. State, 61 S.W.3d 424 (Tex. Crim. App. 2001).

TOM GRAY

Justice

Dissenting opinion delivered and filed May 1, 2002

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