



 








In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-01-01134-CR
____________

MICHAEL ADAM RAUSCHER, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 872114



OPINION  ON  REHEARING
	Appellant pleaded guilty to possession of marihuana after the trial court
denied his motion to suppress.  Appellant entered into a plea bargain agreement with
the State in which the State moved to reduce the charge to a state jail felony and
recommended that punishment be assessed at 12 months in state jail.  The trial court
followed the terms of the plea agreement in assessing punishment.  Appellant filed
a general notice of appeal.  We dismissed the appeal for lack of jurisdiction in an
opinion that issued on January 24, 2002.  Appellant filed a motion for rehearing, a
motion for leave to file amended notice of appeal, and an amended notice of appeal. 
The amended notice states that the subject of the appeal was raised by written motion
and ruled on before trial.  The State filed a response.
	The motion for rehearing is granted.  We order withdrawn our opinion
of January 24, 2002, and issue the following in its place.  
	In a plea-bargained felony case, the notice of appeal must comply with the
extra-notice requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate
Procedure in order to properly invoke an appellate court's jurisdiction.  White v. State,
61 S.W.3d 424, 429 (Tex. Crim. App. 2001); Robinson v. State, 24 S.W.3d 438, 438-39 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd).  Those requirements are that the
notice of appeal:
	(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(b)(3).
	Omitting the formal portions, appellant's notice of appeal that was filed on
the sentencing date stated:
	COMES NOW MICHAEL RAUSCHER, Defendant, by and
through his attorney of record, . . . , respectfully gives notice of
his intent to appeal this court's judgment and sentence entered on
the 26th day of October, 2001.

No other notice of appeal is included in the record, and appellant does not assert that
any additional notice of appeal was filed within 30 days following his sentencing. (1) 
Therefore, appellant's notice of appeal failed to properly invoke this Court's
jurisdiction.
	In his motion for rehearing, appellant relies on Rule 25.2(d) of the Rules of
Appellate Procedure and argues that, because briefs have not yet been filed, he may
amend his notice of appeal.  Rule 25.2(d) provides:
	An amended notice of appeal correcting a defect or omission in
an earlier filed notice may be filed in the appellate court at any
time before the appellant's brief is filed.  The amended notice is
subject to being struck for cause on the motion of any party
affected by the amended notice.  After the appellant's brief is
filed, the notice may be amended only on leave of the appellate
court and on such terms as the court may prescribe.

Tex. R. App. P. 25.2(d).
	The Court of Criminal Appeals clarified the meaning of this rule in State v.
Riewe, in which it held:
	It is true that Rule 25.2(d) allows an amendment to a notice of
appeal.  But when the Legislature granted this Court rule-making
authority, it expressly provided that the rules could not abridge,
enlarge or modify the substantive rights of a litigant.  [Footnote
omitted.]  And our caselaw prevents a court of appeals from using
an appellate rule to create jurisdiction where none exists. 
[Footnote omitted.]  It does not matter which appellate rule the
court of appeals attempts to use, be it former Rule 83, former
Rule 2(b), or current Rule 25.2(d).  The point is that, once
jurisdiction is lost, the court of appeals lacks the power to invoke
any rule to thereafter obtain jurisdiction.  [Footnote omitted.]
Even a claimed deprivation of constitutional rights cannot confer
jurisdiction upon a court where none exists, anymore than parties
can by agreement confer jurisdiction upon a court.  [Footnote
omitted.]  So any amendments made pursuant to Rule 25.2(d)
cannot be jurisdictional amendments.

	In the instant case, the State filed its motion to amend notice of
appeal and its amended notice of appeal after it had filed its
appellate brief.  At that point, the court of appeals had no
jurisdiction over the case.  Its dismissal of the appeal for want of
jurisdiction was proper.

13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000) (emphasis added).

	Appellant seeks to make a jurisdictional amendment to his notice of appeal
by adding, "that the substance of the appeal was raised by written motion and ruled
on before trial," using Rule 25.2(d).  We are prohibited from doing this by Riewe.  If
the time for filing a proper notice of appeal has expired, an appellant may not file an
amended notice of appeal to correct jurisdictional defects.  Bradley v. State, 45
S.W.3d 303, 304 (Tex. App.--Houston [1st Dist.] 2001, pet. filed); see also Johnson
v. State, 32 S.W.3d 444, 445 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd).  Once
jurisdiction is lost, an appellate court lacks the power to invoke any rule to thereafter
obtain jurisdiction.  Robinson, 24 S.W.3d at 439.	
	In his motion for rehearing, appellant seizes on the language in Riewe that
"the State filed its motion to amend notice of appeal and its amended notice of appeal
after it had filed its appellate brief," and that "[a]t that point, the court of appeals had
no jurisdiction over the case."  Appellant urges that we narrowly interpret Riewe to
hold that until an appellant's brief has been filed, Rule 25.2(d) permits the filing of
an amended notice of appeal to correct jurisdictional defects.  He points out that
Judge Womack opined in his concurrence, "I believe that if the State had filed the
amended notice of appeal before it filed its brief, as Rule of Appellate Procedure
25.2(d) requires, the appeal would have been proper."  Id., at 414 (Womack, J.,
concurring).  
	 We do not agree with appellant's interpretation.  The court's holding in
Riewe did not turn on the fact that the amended notice of appeal was filed after the
brief.  The central holding was that "once jurisdiction is lost, the court of appeals
lacks the power to invoke any rule to thereafter obtain jurisdiction."  Id., at 413.  The
point at which jurisdiction was lost was not the filing of the appellant's brief. 
Jurisdiction was lost when the time for filing a proper notice of appeal expired
because it is the notice of appeal that either does or does not properly confer
jurisdiction on an appellate court.  After that point, the appellate court could not
utilize any rule, including Rule 25.2(d), to regain jurisdiction.  Riewe, 13 S.W.3d at
413.
	Appellant's argument that an amended notice of appeal was timely if filed
before the brief was rejected in Lowry v. State, 48 S.W.3d 309, 311-12 (Tex.
App.--San Antonio 2001, pet. filed).  The Dallas Court of Appeals stated in Brown
v. State, 53 S.W.3d 734, 738 (Tex. App.--Dallas 2001, pet. ref'd):
	[W]e hold that a party may amend its notice of appeal under rule
25.2(d) to successfully invoke an appellate court's jurisdiction as
long as the amendment occurs within the time to file a notice of
appeal under rule 26.2.

In Martinez v. State, 50 S.W.3d 572, 575-76 (Tex. App.--Fort Worth 2001, pet.
ref'd), the court held that the appellant's attempt to file an amended notice of appeal
complying with Rule 25.2(b)(3) 190 days after judgment was of no effect on the basis
of Riewe.  The court wrote, "Because appellant's original notice did not initially
confer jurisdiction on this court, we now have no power to accept an amended notice
to obtain jurisdiction retroactively." Id., at 576; see also Mitich v. State, 47 S.W.3d
137, 140 (Tex. App.--Corpus Christi 2001, no pet.); Lopez v. State, 60 S.W.3d 268,
269 (Tex. App.--Texarkana 2001, no pet.); Lawson v. State, 46 S.W.3d 434, 436
(Tex. App.--Waco 2001, no pet.); Whitt v. State, 45 S.W.3d 274, 275 (Tex.
App.--Austin 2001, no pet.); Betz v. State, 36 S.W.3d 227, 229 (Tex. App.--Houston
[14th Dist.] 2001, no pet.).  Appellant cites us to no caselaw in support of his
interpretation of Riewe.
	Because the time for filing a proper notice of appeal has expired, appellant
may not file an amended notice to correct jurisdictional defects.  The motion for leave
to file amended notice of appeal is denied.
	Accordingly, we dismiss the appeal for lack of jurisdiction.
PER CURIAM
Panel consists of Chief Justice Schneider, and Justices Taft and Radack.
Publish.   Tex. R. App. P. 47.
1.    	Because no motion for new trial was filed, appellant's notice of appeal was due
within 30 days after the date of sentencing.  See Tex. R. App. P. 26.2(a).
