Opinion issued July 2, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                              NO. 01-18-00763-CR
                            ———————————
                         TIM WOLFFORD, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                       On Appeal from the County Court
                           Chambers County, Texas
                          Trial Court Case No. 33677


                          MEMORANDUM OPINION

       A jury found appellant, Tim Wolfford, guilty of the offense of illegal

collection of alligator eggs1 and assessed his punishment at a fine of $75. In three

issues, appellant contends that the trial court erred in entering judgment against

him.

1
       See TEX. ADMIN. CODE ANN. § 65.358(c).
      We dismiss the appeal for lack of jurisdiction.

                                   Background

      Appellant was cited for violating Texas Administrative Code section

65.358(c).2 Section 65.358(c) prohibits the collection of alligator eggs on tracts of

land for which a person does not have proper authorization, which is demonstrated

by possession of a “stamp.” Appellant had “stamps” for collecting alligator eggs

on one property, and he was cited for the collection of eggs on a neighboring

property for which he did not possess “stamps.” A justice court found him guilty

and assessed his punishment at a fine of $500. Appellant appealed his conviction

to the county court. On appeal to the county court, a jury found appellant guilty

and assessed his punishment at a fine of $75.

                                    Jurisdiction

      The State argues that we lack jurisdiction over this appeal because the fine

assessed against appellant is less than $100 and the main issue on appeal does not

concern a challenge to the constitutionality of a statute on which appellant’s

conviction is based.

      “Courts always have jurisdiction to determine their own jurisdiction.”

Harrell v. State, 286 S.W.3d 315, 317 (Tex. 2009); see also Martinez v. State, 5

S.W.3d 722, 725 (Tex. App.—San Antonio 1999, no pet.).                 Whether we


2
      Id.
                                         2
have jurisdiction is a question of law, which we review de novo. See Tex. A & M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Comunidad Corp. v.

State, 445 S.W.3d 401, 404 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

Article 4.03 of the Texas Code of Criminal Procedure provides as follows:

      The Courts of Appeals shall have appellate jurisdiction coextensive
      with the limits of their respective districts in all criminal cases except
      those in which the death penalty has been assessed. This Article shall
      not be so construed as to embrace any case which has been appealed
      from any inferior court to the county court, the county criminal court,
      or county court at law, in which the fine imposed or affirmed by the
      county court, the county criminal court or county court at law does not
      exceed one hundred dollars, unless the sole issue is the
      constitutionality of the statute or ordinance on which the conviction is
      based.

TEX. CODE CRIM. PROC. ANN. art. 4.03.

      It is undisputed that appellant was convicted of a Class C misdemeanor and

assessed a fine of $75 for violating Texas Administrative Code section 65.358(c)

by collecting alligator eggs on tracts of land for which he was not authorized. In

his opening brief, appellant asserts three issues: (1) that the trial court erred by

applying the definition of “take” from Texas Parks and Wildlife Code section

65.001(4) to the charged offense, which is found in Texas Administrative Code

section 65.358(c); (2) that the trial court erred in finding that Texas Administrative

Code section 65.358(c) is a strict liability offense; and (3) that the trial court erred

in denying appellant’s motion for a directed verdict because the State failed to

prove its case because it offered no evidence that the alleged nest in question was
                                           3
not on the property for which appellant possessed “stamps” for collecting alligator

eggs.    Although his opening brief makes vague references to “due process,”

nowhere in it does appellant challenge the constitutionality of section 65.358(c) of

the Texas Administrative Code.

        In his first issue, appellant argues that the trial court erred in using an

improper definition to interpret the statute on which his conviction was based.

Texas Administrative Code section 65.358(c) provides that “[a]n alligator egg

collector shall collect only on tracts designated for the stamps in their possession.”

TEX. ADMIN. CODE ANN. § 65.358(c).            Appellant argues that the trial court

improperly used the definition of “take” from the Texas Wildlife Code instead of

the definition of “egg collection” from the Texas Administrative Code. See id. at

§ 65.352(4); TEX. PARKS & WILD. CODE ANN. § 65.001(4). The definitions section

for the applicable subchapter of the Texas Administrative Code provides:

        The following words and terms, when used in this subchapter, shall
        have the following meanings, unless the context clearly indicates
        otherwise. All other words and terms shall have the meanings
        assigned in Subchapter A of this chapter . . . and in the Parks and
        Wildlife Code.

TEX. ADMIN. CODE ANN. § 65.352. In that same section, “egg collection” is

defined as “[t]o remove or possess alligator eggs from wild nests.”            Id. at

65.352(4). The definition of “take” applied by the trial court is found in Texas

Parks and Wildlife Code section 65.001(4), which defines “take” as “the act of


                                          4
hooking, netting, snaring, trapping, pursuing, shooting, killing, capturing, or

collecting by any means or device and includes the attempt to take by the use of

any method.” See TEX. PARKS & WILD. CODE ANN. § 65.001(4). Appellant makes

several arguments regarding how the trial court allegedly erred in applying the

definition of “take” as opposed to “egg collection” in interpreting the statute at

issue and instructing the jury in this case. However, nowhere in his argument does

appellant assert that section 65.358(c) of the Texas Administrative Code is

unconstitutional.

      In his second issue, appellant argues that the trial court erred in finding that

section 65.358(c) is a strict liability offense that does not require proof of a

culpable mental state for conviction. Appellant makes several arguments regarding

why the statute at issue is not a strict liability offense and that a culpable mental

state must be found before a person can be found guilty under the statute.

However, nowhere in his argument does appellant assert that section 65.358(c) of

the Texas Administrative Code is unconstitutional.

      In his third issue, appellant argues that the trial court erred in denying his

motion for a directed verdict of “not guilty” because the State failed to prove a

prima facie case of the offense charged. Appellant specifically asserts that the

State did not prove a prima facie case because it failed to offer any evidence that

the alleged nest in question was located on the neighboring property for which


                                          5
appellant did not possess a “stamp” to collect alligator eggs. However, nowhere in

his argument does appellant assert that section 65.358(c) of the Texas

Administrative Code is unconstitutional.

      No argument in appellant’s opening brief can be construed as challenging

the constitutionality of the statute on which his conviction is based. Nor did

appellant challenge the constitutionality of the statute in either of the courts below.

In his reply brief, in response to the State’s argument that this appeal should be

dismissed for lack of jurisdiction, appellant argues that his first two issues

challenge the constitutionality of Texas Administrative Code section 65.358(c).

He further asserts in his reply brief that the statute is unconstitutionally vague and

violates the equal protection clause. However, none of these arguments were made

in appellant’s opening brief. And the Texas Rules of Appellate Procedure do not

allow an appellant to include in a reply brief new issues in response to a matter

pointed out in an appellee’s brief, but not raised by the appellant in his original

brief. See TEX. R. APP. P. 38.3; Barrios v. State, 27 S.W.3d 313, 321–22 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref’d).

      The fact that the arguments challenging the constitutionality of Texas

Administrative Code section 65.358(c) were not raised until appellant’s reply brief

is further indication to the Court that his appellate issues in substance do not

involve the constitutionality of the statute on which his conviction is based and that


                                           6
these arguments were made in reply merely as an attempted jurisdictional hook.3

Regardless, we would only have jurisdiction where the sole issue raised challenges

the constitutionality of the statute, which is not the case here under any reasonable

interpretation of appellant’s briefs. See TEX. CODE CRIM. PROC. ANN. art. 4.03.

      Accordingly, we hold that we lack jurisdiction to consider this appeal.

                                     Conclusion

      We dismiss the appeal for lack of jurisdiction and dismiss all pending

motions as moot.




                                               Julie Countiss
                                               Justice

Panel consists of Justices Lloyd, Landau, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




3
      Alternatively, appellant requests that this Court grant leave to amend his original
      brief in lieu of dismissal pursuant to Texas Rule of Appellate Procedure 38.7.
      “[A]n appellate court has some discretion to choose between deeming a point
      waived and allowing amendment or rebriefing.” Fredonia State Bank v. Gen. Am.
      Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); see also Cisneros v. State, No. 08-
      09-0096-CR, 2010 WL 2990657, at *4 (Tex. App.—El Paso July 30, 2010, pet.
      ref’d) (not designated for publication). Based on the briefing to this Court and
      record from the courts below, we deny appellant’s request to file an amended brief
      in order to raise new issues concerning the constitutionality of Texas
      Administrative Code section 65.358(c).
                                           7
