NO. 07-04-0548-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A JANUARY 30, 2006

______________________________ IN THE MATTER OF THIRTY-FOUR GAMBLING DEVICE S, AND SIX HUNDRED THIRTY-NINE DOLLARS IN UNITED STATES CURRENCY

_________________________________ FROM THE 181 ST DISTRICT COURT OF RANDALL COUNT Y; NO. 53,71 6-B; HONO RABLE J OHN BOAR D, JUDGE

_______________________________ Before REAVIS and CAMPBELL and H ANCOCK, JJ.
MEMORAND UM OPINION Appella nt, Michelle Medrano, ap peals a judgment forfeiting 34 gambling devices, $639 cash, and other items which were seized from Medrano’s possession. We dismiss for want of jurisdiction.
On June 24, 2003, an Affidavit for Search Warrant was submitted to Judge John B. Board. The affiant was Corporal Dan Howin gton of the Amarillo Police Department. In his affidavi t, Howington described the results of an undercover i nvestigation, concluded that his investi gation re vealed f acts suffi cient to establis h probab le causeto believe that illegal gambling activities were occurring at a business known as “The Other Place,” and1 Further reference to provisions of the Texas Code of Criminal Procedu re will be by referenceto “artic le ___.” 2 requested the issua nce of a search warrant. On that same day, Judge Board i ssued a warrantto search “The Other Place” based upon Howington’s affidavit. As a result of the search, the property at is sue in this case was seized. Medrano was the person found in possession of the property at the time of the seizure.
The State fil ed a Peti tion for F orfe i ture of Gambling Devices and/or Gambling Paraphernalia and Gambling Proceeds seeking forfeiture of the seized property pursuant to article 18.18 of the Texas Code of Criminal Procedu re. See T EX . C ODE C RIM . P ROC
. A NN . § 18.18 (Vernon 20 05). 1 Medrano filed a genera l denial . The tri al court set the fo rfeiture for trial and sent a genera l noticeto the pa rties.
One day prior to the date set for the trial, Medrano filed a Plea in Abatement and Motion for Continuance objecting to the court’s notice as failing to comply with the notice requir ed by article 18 .18. The court reset the trial for a later date and issued a Notice Pursuant to Texa s Code of Crimina l Proced ure – Arti cle 18.1 8 (“the co urt’s not ice”).
While hearing certain pre-trial motions filed by Medrano, the trial court indicated that ithad intended for the forfeiture p roceeding t o have proceeded under the court’s notice rather than under the State’s petition. However, because the case ini tiated bythe court’s notice had not been assigned a cause number, th e trial court called cause number 53,716- B, the caus e initia ted by the State’s petition . After re solution of the pr e -trial matter s, the2 We note that the c ourt’s notice was also filed in the file of the 53,716-B cause

number. 3 court called the case to by tried by stating “we will proceed u nder t he 18.18 notice in 53,716-B .” 2 Following trial, the court rendered judgment that the seized property was prohibited gambling devices, paraphernalia , and p roceeds. The court then rendered judgment that the machines were gambling devices and gambl ing paraphernalia and that the currency was gamb ling pro ceeds.
After renditio n but pri or to writ ten judgme nt, the State filed a Motion to Sever requesting that all issues in cause number 53,716-B be severed into a new cause initiated bythe court’s notice. The purpose of the severan ce request was to effectuate the trial court’s stated i ntent to conduct th e forfeitu re procee dings un der the co urt’ s notice. The State further indicated that, if the proceedings were severed into a new cause arising from the court’s notice, the State i ntended to dismiss the 53,716-B cause number. Medrano objected to the se verance contendin g that theState’s severance re quest w as untimely. The trial court granted the State’s severance on the same day that it entered judgment in
cause number 53,716-B. By its severance order, any pleading s filed in cause number 53,716-B thatarose fro m, or were r esponsive to, the court’s n otice we re to be s evered i nto
a newcause, which was assigned causenumber 54,834-B. Following the severance, the State filed a Motion for Nonsuit in cause number 53,716-B, which was granted by the trial court. Me drano filed a Motion to Strike or, Alternatively, for New Trial objecting that the4

court’s sever ance came after the case had been submitted to the fact-finder. These motions were overruled by operation of law.
Because th e jurisdi cti on of a court is fundamental, a court must notice, even sua sponte , the matte r of its ju risdicti on. Lechuga v. Texas Employers' Ins. Ass'n , 791 S.W.2d 182, 187 (Tex .App.–Ama rillo 19 90, writ d enied); Marshall v. Brown , 635 S.W.2d 578, 580 (Tex.App.–Amarillo 1982, writ ref'd n.r.e.). In a civil case, an appeal from a final judgment may general ly be taken to thecourt of a ppeals. T E X . C IV . P RAC
. & R EM . C ODE § 51.012 (Vernon 1 997). Medrano, according to her notice of appeal, appeale d from jud gment in cause number 54,834-B . Howeve r, our revi ew of therecord re veals tha t n o judgmen t was en tere d in cause number 54,834-B. The only judgment found in the record is in cause number 53,716-B . Thus, we can fin d no fina l judgmen t i n cause n umb er 54,834-B upon which Medrano’s appeal can be predicated.
We further conclude that the trial co urt’s sev erance or der in ca use numbe r 54,834- B fails to sever the judgme nt in cau se number 53,716-B into the appealed cause. We note thatboth the co urt’s judgm ent in ca use numbe r 53,716- B and se verance o rder were entered o n July 26 , 2004. H owever, t he severan ce ordersthat

cause number 5 3,716-B be severed from the action arising from the Court’s Notice Pursuant to Texas Code of Criminal P rocedure - Article 18.18, . . . that the action arising from the [court’s] notice b e made a separatesuit, and that the separate suit be assigned its ow n docketnumber . . . . It is further ordered that any pleadings filed in cause number 53,716-B that arose fro m, or were res ponsive to, the Co urt’s not ice . . . b e made a part of t he Court’s file in the new cause.3 We note tha t Pie rce v. Reynolds , 160 Tex . 198, 32 9 S.W.2d 7 6, 78-79 (1959),

provides that an appeal may be taken from a potentially erroneous severance even though, if the severance is subsequently vacated, no fina l jud gment would exist in the appeal. However, in Pierce , the appellant appealed the purportedly final judgment entered in the severed cause. In the present case, Medrano appealed a “judgment” entered in cau s e number 54,834-B when no

such jud gment ex ists. We do not be lieve th at Pierce provides authority for us to review a judgment entered in a wholly separate cause from that appeale d. 5 (Emphasis added). The court’s severance order does not ex pressly sever the judgme nt entered in cause nu mb er 53,716-B into the new cause, even though such judgment was entered at or about the same time the severance w as ordered. 3 A s the trial court did not enter judgmentin cause number 54,834-B and as the severance failed to sever the 53,716- B judgment into cause number 54,834-B, we find no appe alable judgment in cause number 54,834-B.
We acknowledge that

the Texas Supre me Court has indicated that a court of appeals has jurisdiction over

an appe al when the appellant files an in strument that is a bona fide attempt to invoke appellate jurisdiction and that decisi ons of appellate courts should turn on substance rather than procedur al techn icaliti es. See San Antonio v. Rodriguez , 828 S.W.2d 417, 418 (Tex. 1992). In Rodriguez , the Court held that the city’s notation of the incorrect
cause number o n its not ice of ap peal did not defe at the cou rt of a ppeals’ jurisdiction over the appeal. Id . Howeve r, we find the prese nt case d istingui shable f rom Rodriguez

. A s indicated above, n o final j udgment was entered in cause number 54,834-B. Thus, unlike Rodriguez , the present appeal does not simply fail to correctly identify the cause number of4 We also no te that Grand Prai rie Indep. Sc h. Dist. v. S. Parts Imports, Inc. , 813

S.W.2d 499, 500 (Tex. 1992), indicates that we must give an appellant a reasonable opportun ity

to amend or refile an instrume nt that was a bona fide attempt to invoke our jurisdiction. However, in the prese nt case, the re was no judgment entered in cause number 54,834-B and the judgment entered in cause number 53,716-B was dismissed while the trial court retained plenary power over the cause and a t the request of the State. See T EX . R. C IV . P. 329b(d ). C onsequent ly, any notice of appeal relating to the present case could not be an appeal of a final judgment and, therefore, we conclude that allowing Medrano an opportunity to amend or refile would be futile. 6 the judgment being ap pealed f rom, rathe r, it attempts to appeal a judgment that simply does not exis t. 4 Concluding that there is no final judgment in thiscause upon which Medrano could appeal, we dismiss her appeal for want of jurisdiction.

Mackey K. Hancock Justice