                                  NO. 07-02-0078-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    APRIL 23, 2002

                         ______________________________


                     NICOLAS DAMEON MCFALLS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

           NO. 43,774-C; HONORABLE ROBERT MONTGOMERY, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Appellant Nicolas Dameon McFalls appeals from a conviction for burglary of a

habitation. We dismiss for want of jurisdiction.


      On July 26, 2001, in cause No. 43,774-C in the 251st District Court of Potter County,

appellant pled guilty to the crime of burglary of a habitation. The plea was pursuant to a

plea bargain agreement. The trial court found appellant guilty and, honoring the plea
agreement, sentenced him to 20 years incarceration in the Texas Department of Criminal

Justice, Institutional Division. Sentence was imposed on July 26, 2001.


       The clerk’s record reflects a document which appears to have been prepared by

appellant, acting pro se, which is entitled “Notice of Appeal and Motion for New Trial.” The

body of the document gives “. . . notice of appeal and motion for new trial with regards to

the judgment and sentence here entered on July 28, 2001. . . .” The document was file-

marked by the Potter County District Clerk on February 4, 2002, but it contains a certificate

of service which sets out that it was served on the Potter County District Attorney on July

28, 2001. Appellant’s notice does not allege that (1) his appeal is based on a jurisdictional

defect, (2) the substance of the appeal was raised by written motion ruled on before trial

or (3) the trial court granted permission to appeal. See TEX . R. APP . P. 25.2(b)(3).1


       A threshold question in any case is whether the court has jurisdiction over the

pending controversy. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996).

Courts will address the question of jurisdiction sua sponte; for, unless a court has

jurisdiction over a matter, its actions in the matter are without validity. Id. at 657 n.2.


       The Rules of Appellate Procedure do not establish jurisdiction of courts of appeals,

but, rather, the Rules provide procedures which must be followed in order to invoke

jurisdiction over a particular appeal.       See 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



       1
           A rule of appellate procedure will be referred to as “TRAP_” hereafter.

                                               2
power of the appellate court to act is as absent as if it did not exist, id., and the appeal will

be dismissed for lack of jurisdiction.      See State v. Riewe, 13 S.W.3d 408, 413-14

(Tex.Crim.App. 2000).


       Appellate jurisdiction is invoked by giving timely2 and proper notice of appeal. Id.

at 410. To perfect appeal from a judgment which was rendered on the defendant’s plea

of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and in which

the punishment assessed did not exceed the punishment recommended by the prosecutor

and agreed to by the defendant, the notice of appeal 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. See TRAP 25.2(b)(3); White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 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. Id.


       Appellant’s Notice of Appeal does not contain one of the three allegations

necessary to invoke our appellate jurisdiction over an appeal from his conviction. See

TRAP 25.2(b)(3); White, 61 S.W.3d at 428. Accordingly, our jurisdiction has not been

invoked and we dismiss the appeal for want of jurisdiction.




       2
         In a criminal case, appeal is perfected by timely filing a notice of appeal. TEX . R.
APP . P. 25.2(a). The notice of appeal must be filed within 30 days after the day sentence
is imposed or after the day the trial court enters an appealable order, unless a timely
motion for new trial is filed. Id. Because appellant’s notice did not invoke our appellate
jurisdiction even if timely filed, we need not and do not address the question of the
discrepancy between the date of July 28, 2001, in the certificate of service and the date
of February 4, 2002, on which the document was filed by the clerk.

                                               3
                      Per Curiam


Do not publish.




                  4
