Opinion
No. 01-02-00257-CR.
Opinion Issued May 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 886,169.
Before Justices TAFT, KEYES, and HIGLEY.
MEMORANDUM OPINION
Appellant, David Lee Brown, Jr., pled guilty to the offense of possession of a firearm by a felon. In accordance with the terms of the plea agreement, the trial court sentenced appellant to three years' confinement. In its briefing, the State contends that appellant failed to comply with former Rule of Appellate Procedure 25.2(b)(3). We agree. Accordingly, we dismiss for lack of jurisdiction. Rule of Appellate Procedure 25.2(b) was amended to delete the provisions of subsection (b)(3), effective January 1, 2003. Because appellant's notice of appeal was filed before January 1, 2003, we apply former Rule 25.2(b)(3). Under former Rule 25.2(b)(3), when, as here, an appellant was convicted pursuant to the terms of a plea bargain, his notice of appeal had to state that the appeal was for a jurisdictional defect, a matter raised by written motion and ruled on before trial, or that the trial court gave permission to appeal. See TEX. R. APP. P. 25.2(b)(3), 948-949 S.W.2d (Tex. Cases) XLI, XCVI (Tex.Crim. App. 1997, amended effective January 1, 2003). In three issues, appellant complains that (1) the trial court's judgment is void because appellant is not a convicted felon; (2) the evidence was legally insufficient to support the judgment; and (3) "appellant was actually innocent of the crime of which he was convicted." Appellant's first issue — that the trial court's judgment is void — can be construed as a jurisdictional challenge. However, appellant's notice of appeal failed to state that the appeal was for a jurisdictional defect. The Court of Criminal Appeals has held that in a plea-bargained, felony case, such as this one, even to raise a jurisdictional defect, the appellant must first comply with former Rule 25.2(b)(3) to invoke our appellate jurisdiction over the appeal. White v. State, 61 S.W.3d 424, 427-29 (Tex.Crim. App. 2001). Because appellant's notice of appeal does not comply with the requirements of former Rule 25.2(b)(3), we are without jurisdiction to address the merits of appellant's claims. All three of appellant's issues, which challenge his conviction for possession of a firearm by a felon, are based on his contention that he was previously convicted of a misdemeanor, not a felony. Appellant does not dispute that his void-judgment claim (i.e., jurisdictional-defect claim), as well as his claims of legal insufficiency of the evidence and "actual innocence," are unsupported by the appellate record. Rather, in a motion, appellant requests this Court take judicial notice of documents from another proceeding, which he contends establish his earlier conviction was a misdemeanor. We are unable to rule on appellant's motion. Absent appellate jurisdiction, we can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim. App. 1996). We dismiss the appeal for lack of jurisdiction.
TEX. PENAL. CODE ANN. § 46.04 (Vernon 2003).
In his notice of appeal, appellant states that he desires to appeal rulings on his pretrial motions; however, appellant raises no issues related to such rulings on appeal. To invoke this Court's jurisdiction, the notice of appeal must have complied both in form and in substance with extra-notice requirements of former Rule 25.2(b)(3). Flores v. State, 43 S.W.3d 628, 629 (Tex.App.-Houston [1st Dist.] 2001, no pet.). We also note that appellant did not file an amended notice of appeal. Cf. Bayless v. State, 91 S.W.3d 802, 804-06 (Tex.Crim. App. 2002).
Moreover, appellant's second and third issues are not within the categories covered by former Rule 25.2(b)(3), and the trial judge did not give appellant permission to appeal.
This is not to say appellant is without a remedy. As suggested by the State in its brief, appellant's complaints may be presented within the framework of a post-conviction writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2003). As the White court stated,
Failure to properly invoke the jurisdiction of an appellate court under Rule 25.2(b)(3)(A) does not waive a claim of jurisdictional error. A plea-bargaining defendant can challenge the trial court's jurisdiction in an application for writ of habeas corpus. Not only does Rule 25.2(b)(3)(A) not abridge an appellant's right to appeal a jurisdictional defect on direct appeal, failure to comply with the Rule's requirements does not affect an appellant's right to bring a jurisdictional claim in a post-conviction writ of habeas corpus.
White v. State, 61 S.W.3d 424, 429 (Tex.Crim.App. 2001) (internal citations omitted).