Howard Lee Lewis v. State

• Court: Court of Appeals of Texas
• Decided: October 18, 2002
• Docket: 06-02-00142-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00142-CR ______________________________

HOWARD LEE LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 02-F-425-102

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Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss

O P I N I O N

Howard Lee Lewis appeals from his conviction of the offense of theft on his plea of guilty. Pursuant to a plea agreement, he was sentenced to six years' imprisonment, to run concurrently with that assessed in a companion case.

Lewis filed his notice of appeal in this case pro se. He was represented by counsel at trial, but the trial court permitted counsel to withdraw during the pendency of the appeal.

The Rules of Appellate Procedure do not establish the jurisdiction of the appellate courts, but instead set out procedures which must be followed in order to invoke that jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). If the jurisdiction of a court of appeals is not properly invoked, the power of the court to act is as absent as if it did not exist. Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964) (op. on reh'g). Appellate jurisdiction is invoked by giving timely and proper notice of appeal. State v. Riewe, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000).

We have reviewed the notice of appeal to determine if our jurisdiction has been invoked. The procedures established by Tex. R. App. P. 25.2(b)(3) must be followed in order to invoke jurisdiction over plea-bargained appeals. White v. State, 61 S.W.3d 424, 429 (Tex. Crim. App. 2001) (notice of appeal must specify appeal is for jurisdictional defect to invoke appellate court's jurisdiction on this issue); Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001) (general notice of appeal fails to confer jurisdiction to consider voluntariness of guilty plea); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994) (general notice of appeal fails to confer jurisdiction to consider denial of pretrial motion); Steinecke v. State, No. 01-02-00111-CR, 2002 WL 1380880 (Tex. App-Houston [1st Dist.] June 27, 2002, no pet. h.).

The notice of appeal does not specify that the appeal is for a jurisdictional defect; it does not specify that the substance of the appeal was raised by written motion and ruled on before trial; and it does not state that the trial court granted permission to appeal. Therefore, the notice of appeal is not sufficient to confer jurisdiction on this Court. See Tex. R. App. P. 25.2(b)(3); Lucas v. State, 71 S.W.3d 781, 782 (Tex. App.-Texarkana 2002, no pet.).

We dismiss the appeal for want of jurisdiction.

Josh R. Morriss, III

Chief Justice

Date Submitted: October 17, 2002

Date Decided: October 18, 2002

Do Not Publish

x. R. App. P. 42.1(a). The cross-appeal by Wright against the Reeds, 06-04-00022-CV is dismissed.

Date Submitted:          February 10, 2004

Date Decided:             February 11, 2004