NO. 07-02-0290-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 25, 2002

______________________________

JOHN STEVEN MCLAIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE CRIMINAL JUDICIAL DISTRICT COURT OF JEFFERSON COUNTY;

NO. 84830; HONORABLE LARRY GIST, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

Appellant John Steven McLain appeals from his conviction for possession of a

controlled substance. We dismiss for want of jurisdiction. 

Appellant filed a general Notice of Appeal from his plea-bargained judgment of

conviction dated May 16, 2002, in Cause No. 84830 in the Criminal District Court of

Jefferson County. Sentence was imposed on May 13, 2002. 
1A rule of appellate procedure will be referred to as “TRAP_” hereafter.

2

In his original Notice of Appeal appellant did not allege that (1) his appeal was

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

 On November 12, 2002, appellant filed an Amended Notice of

Appeal alleging that the trial court gave permission for the appeal. 

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 White v. State, 61 S.W.3d 424, 427-28

(Tex.Crim.App. 2001). If the jurisdiction of a court of appeals is not properly invoked, the

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

dismissed for lack of jurisdiction. See id. at 428, 429. 

Appellate jurisdiction is invoked by giving timely and proper notice of appeal. See

id. at 428. 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
3

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 TEX. R. APP. P. 25.2(b)(3); White, 61 S.W.3d at 428. 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. TRAP 25.2(d) does not permit an appellate

court to grant a motion to amend the notice of appeal if the amendment sought to be made

to the notice of appeal is a jurisdictional amendment. See State v. Riewe, 13 S.W.3d 408,

413-14 (Tex.Crim.App. 2000). That is, if the original notice of appeal fails to invoke

jurisdiction of the appellate court, an out-of-time amendment cannot serve to invoke

jurisdiction. Id. Once jurisdiction is lost, an appellate court lacks the power to invoke any

rule to thereafter obtain jurisdiction. Id. at 413; see TRAP 2.

Appellant’s original Notice of Appeal did 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 was not invoked

by the original Notice. The out-of-time amended Notice is ineffective to invoke our

jurisdiction. See Riewe, 13 S.W.3d at 413-14. 

We dismiss the appeal for want of jurisdiction. 

Phil Johnson
4

 Justice

Do not publish.