Alfred William Ward v. State

NO. 07-07-0162-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 20, 2008

______________________________

ALFRED WILLIAM WARD,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 31^ST DISTRICT COURT OF LIPSCOMB COUNTY;

NO. 1090; HON. STEVEN EMMERT, PRESIDING

_______________________________

Memorandum Opinion

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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Alfred William Ward (appellant) appeals from a final judgment revoking his probation. Through a single issue, he contends that the trial court abused its discretion in purportedly reinstating, sua sponte, the motion to revoke probation that it had previously dismissed per the State’s request. Not only did the court exceed its authority in reinstating the matter, but its doing so effectively denied him due process since he lacked notice of the allegations in the reinstated motion, he concludes. We affirm.

          Appellant was charged with and pled guilty to burglary of a habitation with intent to commit assault. Per a plea agreement, he was sentenced to ten years in prison. The sentence was suspended, and the trial court placed him on probation for seven years. Subsequently, the State sought to revoke that probation. It then moved to dismiss its motion, and the trial court granted that request. Later the same day, however, the trial court withdrew its dismissal order and reinstated the State’s motion to revoke. At the revocation hearing, appellant pled true to all of the allegations in the motion. Thereafter, the trial court revoked appellant’s probation and sentenced him to five years in prison.

          Appellant now contends that the trial court erred in reinstating the motion to revoke and withdrawing its prior order dismissing the State’s motion. We note that the State did not object to the trial court’s decision to reinstate the motion. Nor did the allegations in the reinstated motion change from those initially averred. More importantly, the appellant never objected (of record) to the order reinstating the motion, to the prosecution of the motion once it was reinstated, or to the revocation hearing. Nor did appellant claim surprise or request a continuance at the hearing; indeed, he even waived reading of the motion to revoke.

          In sum, none of the complaints before us have been preserved for review. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Liggett v. State, 998 S.W.2d 733, 736 (Tex. App.–Beaumont 1999, no pet.). Accordingly, we overrule his sole issue.

          The judgment revoking probation is affirmed.

                                                                                      Per Curiam

Do not publish.

eal or a notice of appeal which does not conform to jurisdictional requirements or contain jurisdictional assertions will not invoke the jurisdiction of the court of appeals. See id. at 411, 413-14. If an appeal is not timely perfected, a court of appeals can take no action other than to dismiss the appeal. See Slaton, 981 S.W.2d at 210. Tex. R. App. P. 25.2(d) does not permit an appellate court to grant a motion to amend the notice of appeal if the amendments sought to be made to the notice of appeal are jurisdictional amendments. See Riewe, 13 S.W.3d at 413-14. Once jurisdiction is lost, an appellate court lacks the power to invoke any rule to thereafter obtain jurisdiction. Id. at 413.

ISSUES 1, 2, 3 and 4: ORDER DATED DECEMBER 30, 1997,

and JUDGMENT DATED NOVEMBER 30, 1998.

Appellant's first four issues address whether the trial court had jurisdiction or authority to hold hearings and enter its order dated December 30, 1997, and judgment dated November 30, 1998. Appellant urges that failure to issue capias or arrest warrant following the State's filing of motions to adjudicate deprived the trial court of jurisdiction or authority to hold hearings and enter orders in the matter.

Appellant, however, did not give notice of appeal from either the order or the judgment until July, 2001, when she amended her notice of appeal. Her general notice of appeal on November 27, 2000, referenced only the November, 2000, order of revocation. By her Amended Notice and Second Amended Notice she referenced revocation of deferred adjudication probation as well as revocation of her regular probation. The amended notices did not specifically state that they were directed to the order of December 30, 1997, or the judgment of November 30, 1998.

Both the 1997 order and 1998 judgment related to the process by which the trial court determined to proceed to adjudicate appellant. No appeal may be taken from such actions. See Article 42.12, § 5(b); Connolly, 983 S.W.2d at 741. Moreover, neither appellant's original, amended or second amended notice of appeal were timely to invoke appellate jurisdiction as to the 1997 order or 1998 judgment. See TRAP 26.2. We can take no action as to the issues challenging the December 30, 1997 order and the November 30, 1998 judgment other than to dismiss them for lack of jurisdiction. See Slaton, 981 S.W.2d at 210. Issues 1, 2, 3 and 4 are dismissed for lack of jurisdiction.

ISSUES 5 and 6: IS ISSUANCE OF A CAPIAS

OR ARREST WARRANT JURISDICTIONAL

In asserting the lack of jurisdiction or authority for the trial court to revoke her probation in November, 2000, appellant references authorities such as Garza v. State, 725 S.W.2d 256 (Tex.Crim.App. 1987), which address factual situations in which trial courts heard motions to revoke probation after expiration of probationary periods. In addressing such situations, Garza and other cases cited by appellant consider whether the State filed its motion to revoke before the probationary period ended and pursued revocation by requesting and obtaining issuance of capias for arrest before expiration of the probation period.

In the matter before us, the hearing of November 2, 2000, did not take place after appellant's probation expired. We do not believe that authorities addressing revocation hearings taking place after expiration of a probationary period are applicable to appellant's case. But, we need not decide such question because the record in this matter reveals that an alias capias was issued and executed pursuant to the State's motion to revoke on which the November 2, 2000 hearing was based. Moreover, appellant's original, timely-filed general Notice of Appeal did not contain assertions which served to invoke our jurisdiction pursuant to TRAP 25.2(b)(3). Her amended notice stating that the appeal was for jurisdictional defects was not timely, and we may not grant permission to amend her notice because our jurisdiction was not invoked by her original notice. See Riewe, 13 S.W.3d at 413-14. We have no jurisdiction except to determine that we have no jurisdiction, and to dismiss the appeal.

CONCLUSION

The appeal is dismissed for lack of jurisdiction.

Phil Johnson

Justice

Do not publish.

1. Further references to the Code of Criminal Procedure will be by reference to "Article_."

2. Further references to the Texas Rules of Appellate Procedure will be by reference to "TRAP_."