”Bona Fide Attempt” to Appeal In a Criminal Case

In civil cases, the bona-fide-attempt-to-appeal doctrine provides that if an instrument is filed by an appellant in a bona fide attempt to invoke appellate court jurisdiction, and the instrument is defective in some manner, the court of appeals must allow the appellant to amend it or refile the instrument to perfect the appeal.

An appellant argued for extension of this doctrine to the criminal context, asserting that the "may allow" language of article 44.15 should be construed as "must allow" similar to the interpretation given to former Texas Rule of Appellate Procedure 46(f).

However, the Court of Criminal Appeals has expressly rejected the argument that the civil bona-fide-attempt-to-appeal doctrine should be applied to allow appellants to amend untimely or defective notices of appeal in criminal cases. See Olivo v. State, 918 S.W.2d 519, 521, 524-25 (Tex. Crim. App. 1996) (noting the differences between civil and criminal cases in the attachment of jurisdiction and stating "in criminal cases, 'jurisdiction cannot be 'substantially' invoked; it either attaches or it does not.'").