
NO. 07-04-0368-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 20, 2004

______________________________


LUBBOCK GATEWOOD, L.L.C., APPELLANT

V.

MCGATEWOOD, L.C., APPELLEE

_________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-523,936; HONORABLE BLAIR CHERRY, JR., JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION
	On October 18, 2004, the parties filed a Joint Motion to Dismiss Appeal.  No decision
of this Court having been delivered to date, we grant the motion.  Accordingly, the appeal
is dismissed.  No motion for rehearing will be entertained and our mandate will issue
forthwith.  Tex. R. App. P. 42.1.   All costs incurred are adjudged against the party incurring
the same.    


							James T. Campbell
						    	        Justice

 business known as "The Other Place," and
requested the issuance of a search warrant.  On that same day, Judge Board issued a
warrant to search "The Other Place" based upon Howington's affidavit.  As a result of the
search, the property at issue in this case was seized.  Medrano was the person found in
possession of the property at the time of the seizure.
	The State filed a Petition for Forfeiture of Gambling Devices and/or Gambling
Paraphernalia and Gambling Proceeds seeking forfeiture of the seized property pursuant
to article 18.18 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann.
§ 18.18 (Vernon 2005). (1)  Medrano filed a general denial.  The trial court set the forfeiture
for trial and sent a general notice to the parties.  
	One day prior to the date set for the trial, Medrano filed a Plea in Abatement and
Motion for Continuance objecting to the court's notice as failing to comply with the notice
required by article 18.18.  The court reset the trial for a later date and issued a Notice
Pursuant to Texas Code of Criminal Procedure - Article 18.18 ("the court's notice"). 
	While hearing certain pre-trial motions filed by Medrano, the trial court indicated that
it had intended for the forfeiture proceeding to have proceeded under the court's notice
rather than under the State's petition.  However, because the case initiated by the court's
notice had not been assigned a cause number, the trial court called cause number 53,716-B, the cause initiated by the State's petition.  After resolution of the pre-trial matters, the
court called the case to by tried by stating "we will proceed under the 18.18 notice in
53,716-B." (2) 
	Following trial, the court rendered judgment that the seized property was prohibited
gambling devices, paraphernalia, and proceeds.  The court then rendered judgment that
the machines were gambling devices and gambling paraphernalia and that the currency
was gambling proceeds.  
	After rendition but prior to written judgment, the State filed a Motion to Sever
requesting that all issues in cause number 53,716-B be severed into a new cause initiated
by the court's notice.  The purpose of the severance request was to effectuate the trial
court's stated intent to conduct the forfeiture proceedings under the court's notice.  The
State further indicated that, if the proceedings were severed into a new cause arising from
the court's notice, the State intended to dismiss the 53,716-B cause number.  Medrano
objected to the severance contending that the State's severance request was untimely. 
The trial court granted the State's severance on the same day that it entered judgment in
cause number 53,716-B.  By its severance order, any pleadings filed in cause number
53,716-B that arose from, or were responsive to, the court's notice were to be severed into
a new cause, which was assigned cause number 54,834-B.  Following the severance, the
State filed a Motion for Nonsuit in cause number 53,716-B, which was granted by the trial
court.  Medrano filed a Motion to Strike or, Alternatively, for New Trial objecting that the
court's severance came after the case had been submitted to the fact-finder.  These
motions were overruled by operation of law.
 Because the jurisdiction of a court is fundamental, a court must notice, even sua
sponte, the matter of its jurisdiction.  Lechuga v. Texas Employers' Ins. Ass'n, 791 S.W.2d
182, 187 (Tex.App.-Amarillo 1990, writ denied); Marshall v. Brown, 635 S.W.2d 578, 580
(Tex.App.-Amarillo 1982, writ ref'd n.r.e.).  In a civil case, an appeal from a final judgment
may generally be taken to the court of appeals.  Tex. Civ. Prac. & Rem. Code § 51.012
(Vernon 1997). 
	Medrano, according to her notice of appeal, appealed from judgment in cause
number 54,834-B.  However, our review of the record reveals that no judgment was
entered in cause number 54,834-B.  The only judgment found in the record is in cause
number 53,716-B.  Thus, we can find no final judgment in cause number 54,834-B upon
which Medrano's appeal can be predicated.
	We further conclude that the trial court's severance order in cause number 54,834-B
fails to sever the judgment in cause number 53,716-B into the appealed cause.  We note
that both the court's judgment in cause number 53,716-B and severance order were
entered on July 26, 2004.  However, the severance orders that 
cause number 53,716-B be severed from the action arising from the Court's
Notice Pursuant to Texas Code of Criminal Procedure - Article 18.18, . . . that
the action arising from the [court's] notice be made a separate suit, and that
the separate suit be assigned its own docket number . . . .  It is further
ordered that any pleadings filed in cause number 53,716-B that arose from,
or were responsive to, the Court's notice . . . be made a part of the Court's
file in the new cause.
(Emphasis added).  The court's severance order does not expressly sever the judgment
entered in cause number 53,716-B into the new cause, even though such judgment was
entered at or about the same time the severance was ordered. (3)  As the trial court did not
enter judgment in cause number 54,834-B and as the severance failed to sever the 53,716-B judgment into cause number 54,834-B, we find no appealable judgment in cause number
54,834-B.
	We acknowledge that the Texas Supreme Court has indicated that a court of appeals
has jurisdiction over an appeal when the appellant files an instrument that is a bona fide
attempt to invoke appellate jurisdiction and that decisions of appellate courts should turn on
substance rather than procedural technicalities.  See San Antonio v. Rodriguez, 828 S.W.2d
417, 418 (Tex. 1992).  In Rodriguez, the Court held that the city's notation of the incorrect
cause number on its notice of appeal did not defeat the court of appeals' jurisdiction over
the appeal.  Id.  However, we find the present case distinguishable from Rodriguez.  As
indicated above, no final judgment was entered in cause number 54,834-B.  Thus, unlike
Rodriguez, the present appeal does not simply fail to correctly identify the cause number of
the judgment being appealed from, rather, it attempts to appeal a judgment that simply does
not exist. (4) 
	Concluding that there is no final judgment in this cause upon which Medrano could
appeal, we dismiss her appeal for want of jurisdiction.

							Mackey K. Hancock
							         Justice






1. Further reference to provisions of the Texas Code of Criminal Procedure will be by
reference to "article ___."
2. We note that the court's notice was also filed in the file of the 53,716-B cause
number.
3. We note that Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 78-79 (1959),
provides that an appeal may be taken from a potentially erroneous severance even though,
if the severance is subsequently vacated, no final judgment would exist in the appeal. 
However, in Pierce, the appellant appealed the purportedly final judgment entered in the
severed cause.  In the present case, Medrano appealed a "judgment" entered in cause
number 54,834-B when no such judgment exists.  We do not believe that Pierce provides
authority for us to review a judgment entered in a wholly separate cause from that
appealed.    
4. We also note that Grand Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813
S.W.2d 499, 500 (Tex. 1992), indicates that we must give an appellant a reasonable
opportunity to amend or refile an instrument that was a bona fide attempt to invoke our
jurisdiction.  However, in the present case, there was no judgment entered in cause
number 54,834-B and the judgment entered in cause number 53,716-B was dismissed
while the trial court retained plenary power over the cause and at the request of the State. 
See Tex. R. Civ. P. 329b(d).  Consequently, any notice of appeal relating to the present
case could not be an appeal of a final judgment and, therefore, we conclude that allowing
Medrano an opportunity to amend or refile would be futile.

