Davis v. State

discretionary way The ing one or the other. for the statute defendant on motion 44.04(h) Art. and the amendments Appeals purpose review. Court Criminal bail, provide who is in shall determine the amount of but made to it is to defendant Appeals approved custody reverses sureties on the bail must be when the Court conviction, right the court where the trial was had. to have a reasonable defendant’s to release under this sub- not add- set. The 1985 amendment was bail immediately is- way section attaches on the provide the with a ed to defendant Appeals’ Rather, final suance of the court of it was meant apply for baft twice. 209(c). by Tex.Cr.App.R. quickly as defined to have bail set permit a defendant discretionary petition for not wait until a public hearing HB 44 nor the con- Neither language suggests filed. The review was cerning the bill included mention of a may apply either to the that the defendant provision permitting Appeals to the Court of immediately Appeals or wait and Court of Tapes determine the amount of bail. House filed. apply petition after a to this Court Hearing, Bill Public March House Ap- applies If a to the Court of defendant granting The focus a defen- 1985. was on peals has made a choice between two he immediately to reasonable bad dant requesting reversal, mutually provisions exclusive Appeals’ rather after the Court of Ap- bail. Once bail is set the Court making petition than a defendant wait for peals, purpose of the statute is achieved mention made or motion be filed. No language of statute is followed. given changing and the or consideration the stat- Therefore, permit Appeals a defendant not have bail set ute to the Court of to set 44.04(h) under Art. because bail. this Court already Appeals has done so. Court The Criminal Justice Committee of the proposed a for HB 44 in Senate substitute case the the instant Court language which is contained in the stat- Appellant’s already pursuant set bail has today. provi- ute This version included the 44.04(h). Accordingly, request under Art. sion that the shall deter- Appellant to have this Court is not entitled if mine the amount of bail the defendant again request pro- under this consider a bail requests petition bail before a for discretion- request Appellant’s for bail is dis- vision. ary tape recordings review is filed. The of missed. hearings on the for HB Senate substitute 44 reveal there was no discussion of the change authority

Senate’s which conferred to set bail. Senate

Tapes Hearing, for House Bill Public 1985; May

April Reading, Second

1985; Reading, May Third legislative tapes, analyses,

None bill or other documents reveal discussion of Kaye DAVIS, Appellant, Edna coming from intent to foreclose request setting if to this Court to a bail even Texas, Appellee. The STATE of already gone Appeals. he to the had simply probably the issue was never Most No. 1212-89. Therefore, legislative history considered. Texas, Appeals of Court of Criminal provide ques- does not a clear answer to En Banc. may request tion a defendant bail of whether despite having done so this Court Jan. Appeals. legislative regarding intent Because evident, again is not look to the

this issue 44.04(h), purpose of

language of the Art. statute, policy interpret- reasons for

44 Worth, appellant. Alley,

Richard Fort Atty., Curry, Tim Dist. C. Chris Marshall Attys., Chapman, and David Asst. Dist. K. Huttash, Worth, Atty., Fort State’s Robert Austin, for State. APPELLANT’S AND

OPINION ON PETITIONS FOB DISCRE- STATE’S TIONARY REVIEW McCORMICK, Presiding Judge. Appellant pled contendere to the nolo charge possession amphet- aggravated accepted appellant’s amine. trial court offense, plea, found her imposed seven-year recommended sentence appel- 1.15, lant. See Article Pursuant V.A.C.C.P. Tex.R.App.Pro. appellant filed a “general” appeal from her notice of convic- tion.1 addressed, among

The Court of things, other issues: these whether the erroneously trial court denied evidence, pretrial suppress the motion to whether the evidence was sufficient support her Davis v. conviction. 1989). (Tex.App. S.W.2d 404 Worth — Fort held waived trial court errone the issue of whether the intention to Appellant’s the Court of her stated: the Court to the Texas Court of Defendant the above “COMES NOW the Supreme hereby gives appeals, Judicial District.” cause Second entitled and numbered motion, prior to of the ously appellant’s suppression rors that occurred denied Davis, origi- (emphasis in “general” her failed at 406 because nal). require comply with “extra-notice” of the evidence is Since 40(b)(1). Davis, nonjurisdictional occurring ments defect Relying Engelking held the the Court (Tex.Cr.App.1988), of 40(b)(1) S.W.2d 213 the Court apply “but” clause of Rule does Appeals also held the evidence insufficient to claim, sufficiency appel- appellant’s and to Davis, support appellant’s conviction. appeal “general” notice of was suffi- lant’s appellant The S.W.2d 407-08. State Appeals of to review cient for the Court petitions discretionary for review.2 We Davis, (emphasis claim. 773 S.W.2d at 406 judgment Ap reverse the of the Court of supplied). peals. effect, interpreta- claims this The appellant’s “general” claims no- State 40(b)(1) impermissibly gives tion of Rule appeal tice of failed to confer greater scope of than the defendant a Appeals appellant’s to address Legislature agree. intended. We sufficiency In of the evidence claim. relevant 40(b)(1) part, provides: “A criminal action has defendant Appeal] “[Notice of shall be sufficient if it of under the rules hereinaf- shows desire of the defendant to 44.02,V.A.C.C.P., prescribed.” ter Article as peal judgment appeal- from the or other 1925; 813, enacted in former Article C.C.P. order; but ren- able was 1925; if generally see Lemmons v. u-pon plea dered his or nolo con- 58, of (Tex.Cr.App.1991). In S.W.2d 59-63 1.15, pursuant tendere to Article Code following Legislature added the Procedure, punishment Criminal and the proviso 44.02:3 to Article punishment assessed does not exceed the “_provided, before defen- by recommended dant has been convicted based on a [who agreed by to and his attor- defendant negotiated plea and the trial court assess- ney, prosecute in order to an for punishment prose- recommended es nonjurisdictional or error that oc- defect cutor and to prior curred to the notice attorney] may prosecute appeal, he his granted shall state that the trial court court, permission must have the trial permission specify to or shall that except matters which have been on those those matters were raised written mo- raised trial_” written motion filed (Empha- tion and ruled on trial.” before (Emphasis Supplied). Supplied). sis 18, 1985, By held the “but” clause order dated December 44.02, only applies repealed proviso where a defen- Court of Article appeals nonjurisdictional replaced dant defects or er- it with Rule effective granted following permits 2.We review on the an issues 1. Whether by appellant: raised sufficiency negotiated of the evidence for a failing 1. Whether the Court of erred in of nolo contendere where the issue was suppress to address the motion to issue. prior to trial and the trial court did not raised failing 2. Whether the Court of erred in grant permission that issue. permit appellant to file an amended notice permit If Rule does an 2. such Appeals’ after the Court of decision whether that rule is void under Section 22.- preserve had failed to the mo- 108(a) the Texas Government Code. suppress appellate tion to issue for review. evidence for 3. Whether there was sufficient 3. Whether counsel was ineffective appellant’s plea. failing preserve suppress for the motion to Engelking applicable 4. Whether State is issue for in this case. issue appellant’s plea involuntary 4. Whether Appeals’ due to the Court of decision that it Leg., p. § ch. 3.SeeActs 65th suppress could not address the motion to issue. August eff. granted following We review on the also issues the State: be read portions Rule should vant generally Lem- September 1986.4 See mons, delegating au- follows: at 62. “_in compre- thority promulgate to this Court prosecute order in criminal body rules hensive [occurring be- nonjurisdictional defect cases, provided Legislature expressly plea], or error that or after the fore abridge, enlarge or these rules could not prior to occurred litigant.5 modify rights of a the substantive grant- that the trial notice shall state Lemmons, 818 at 59- generally See specify appeal or shall permission to ed by written those matters were raised trial....” ruled on before motion and granted legislatively A defendant’s prior to “that occurred Reading phrase right. See is a substantive modifying only “error” plea” as State, Lemmons, 62; v. at Morris 818 S.W.2d Morris. consistent with makes Rule 772, (Tex.Cr.App.1986). In 749 S.W.2d Lemmons, (prior at case- 818 S.W.2d See Morris, appeal lim notice of the defendant’s Article 44.02 construing proviso of law appeal trial court’s adverse to the ited controls). Moreover, read- prevails and still quash ruling pretrial motion to on his way makes it also ing Rule indictment; however, only the de issue in Article the admonishment consistent with sufficiency appeal on was the fendant raised 26.13(a)(3), V.A.C.C.P.,6 court is that a trial guilty support “to of the evidence prior accept- to give a required to (sic).” Morris, We held 749 S.W.2d at 773. nolo contendere ing or to had no the defendant second first and sustain the State’s We support plea- sufficiency to of the evidence unnecessary find it grounds for review. We proviso to under the bargained conviction and fourth third to address the State’s obtained Article 44.02 unless the defendant grounds for review. permission or raised the trial court’s Appeals trial, the Court of Appellant claims prior to by written motion issue trial court’s therefore, failing to address the do; erred in which he failed suppression motion. ruling pretrial appeal. on her jurisdiction Appeals lacked over plea pro- facts from the Morris, The statement of pro at 774-75. 749 S.W.2d See appellant pled nolo contende- ceeding reflects 40(b)(1), acted on mulgating Rule this Court understanding, the trial body caselaw re with assumption “that would be able permission, that she court’s 44.02] Article construing proviso [to Lemmons, ruling suppres- her court’s on appeal the trial prevail and still control.” would However, only a appellant filed motion. Therefore, sion appel hold we 818 S.W.2d at “general” notice of under Rule “general” lant’s notice jurisdiction on the to confer failed appeal is insuffi “general” A appellant’s suffi Appeals to review jurisdiction on a Court of cient to confer Morris, at 749 S.W.2d ciency claim. See ruling court’s on Appeals to review a trial 774-75. in an suppression motion pretrial negotiated based on from a conviction supports reading of Rule plain A v. 796 S.W.2d bargain. See Jones enlarge a defen- holding, does not Morris, 749 S.W.2d (Tex.Cr.App.1990); appeal. The rele- right of substantive dant’s 685, punishment assessed does Leg., that if the "the fact August ch. 69th 4. See Act of (autho- 1-4, punishment recommended 2472-2475 exceed the §§ rizing 1985 Tex.Gen.Laws proce- promulgate rules of the defendant this Court cases). give evidence in criminal attorney, dure and its trial court must and his may he defendant before permission to the Leg., August ch. 69th Act of 5. See case matter in the prosecute an on also Tex. 2472. See § 1985 Tex.Gen.Laws mo- except matters raised written for those 1988). 22.108(a) (Vernon § Code Ann. Gov’t (Emphasis Supplied). trial.” tions 26.13(a)(3) ad- requires a trial court to 6. Article a defendant of: monish Moreover, appellant’s

774-75. this record contains no will not address third and fourth review, those Limiting Appeal” grounds “Order Defendant’s recit- and we dismiss improvidently granted.8 ing requirements grounds the extra-notice 40(b)(1), com- other document which appellant’s “general” hold We bined with sub- jurisdiction failed to confer stantially complies with Rule Appeals to address the trial court’s Court would confer on the Court of motion, appellant’s suppression Appeals appellant’s suppression to address support of the evidence to her Riley issue. See juris appellant raised no conviction. Since (Tex.Cr.App.1992). 700-01 We overrule Appeals, dictional issues in the Court of pellant’s ground first for review. reverse the and order the dismissed for lack Appellant also claims the Court of Morris, 775; jurisdiction. See 749 S.W.2d at refusing permit erred in her to Davis, 773 S.W.2d at 406-08. file an amended notice of after the opin had handed down its MEYERS, J., participating. permitted ion. A defendant not be amend a notice of out of time. See CLINTON, Judge, dissenting. Jones, ap 796 S.W.2d 187. We overrule majority today The holds that the court of pellant’s ground second for review. appeals jurisdiction had no to consider either Finally, appellant the follow raises claim of insufficient evidence or ing erroneously issues: whether the her trial failure of whether the trial court denied legally counsel to pretrial suppress. my file a sufficient notice of her motion to dis State, (Tex. appeal Lyon was ineffective assistance of counsel sent to 872 S.W.2d 732 (Clinton, J., which meaningful right appel Cr.App.1994) dissenting), point denied her a review, Constitution, late plea whether her was out that the Texas and not this involuntary Court, contingent upon jurisdiction since it was grants her to the courts of being suppress appeals, able the motion to and that claims of insufficient evi granted appellant’s issue. petition Tex.R.App. While we dence fall outside the ambit of issues, 40(b)(1). Pro., on these appellant Lyon, we now note that in Rule Not raised but argue cause, did not raise and argued either of these issues in briefed and the instant is in in Appeals, her brief question Court of and that a appeals whether court of consequently court may permit appellant did not address them. an to file an amended previously We have held that require this Court can notice of in order to meet the not review issues which have not first been ments of the “but clause” Rule properly presented State, majority to and ruled on the The cites Jones v. 796 S.W.2d State, Appeals. (Tex.Cr.App.1990) authority See Ward v. 829 183 as for the (Tex.Cr.App.1992); 795-96 proposition Tal that “[a] defendant not be State, (Tex.Cr. lant v. permitted 742 S.W.2d 294 to amend a notice of out of App.1987).7 authorities, Based on Op. majority these we time.” at 47. Jones was a bare State, Appellant having ruling cites Christal v. 692 S.W.2d failed obtain a on the issue in (Tex.Cr.App.1981), proposition 656 for that Appeals. the Court of previously this Court has overturned defen- guilty plea dant’s where the defendant entered 8. The record shows claimed in her with the mistaken belief that he would rehearing motion for in the Court legal be a certain able issue after legally trial counsel’s failure to file a sufficient It is true that in Christal we over- appeal deprived her of her to a circumstances, turned a in such which are meaningful appellate Appellant con review. substantially identical to the circumstances of petition, cedes in her that the Court of Christal, however, procedurally this case. dis- opinion. denied that motion without an tinguishable from this case in that the defendant type ruling by This is not properly in Christal raised the voluntariness is- case, petition discretionary we review on a for sue in a direct appellant to this Court. In this State, review. Rochelle v. 123-25 raised her voluntariness issue in this ( 1990). petition discretionary Tex.Cr.App. Court in a review after

48 indeed, does, give required specific

opinion which stand for that 40(b)(1). Id., at “but I believe that clause” proposition. Because Jones complaint appeals his decided, court of heard wrongly that it be should nonetheless, finding “appellant promptly overruled, I dissent. fully amended notice of com my argu- rehash There is no need here to pointed Rule 40 the State plying with after Lyon appeals’ in the courts of ment in procedural out default its brief.” jurisdiction plenary once invoked. Howev- (Tex.App.— Jones v. 762 S.W.2d 330 er, Lyon: I also as noted 1988). Citing the court Austin to Rule appellate “That a court is vested with “appellant promptly corrected the held that ... authorize it to exer- does procedure it was called defect power. Rule while cise properly before attention. limitation, may jurisdictional serve as Court.” Id. procedural bar to certain issues in cer- reversed, despite supporting precedent We tain circumstances. Which issues? ‘Non- Jones, holding. appeals’ defeet(s) error(s) jurisdictional that oc- We our decision S.W.2d at 187. discounted plea.’ curred (Tex.Cr. Miles v. 40(b)(1), supra. circumstances? Which App.1989) (appeal bond sufficient timely proper, in which notice has Causes 40(b)(1)), as dicta. Id. under i.e., given, not been notice which does distinguished And States Su United granted permis- ‘that the trial court state preme Lucey, in Evitts v. Court’s decision specifies) that sion to or [which] L.Ed.2d 821 105 S.Ct. U.S. matters written mo- those were was, (1985), in inapplicable. Id. Miles ruled trial.’ tion and on before Id.” deed, dicta,1 but the distinction of Court’s (Clinton, J., specious. Evitts Lyon, dissenting). at 742 was The Jones Court wrote: a are an issue and such circumstance Such argues Evitts is au “Appellant ] [that by appellant presented this cause. While sanctioning thority for us the Court complains of an that occurred before error in Appeals’ decision to the defect his waive give entry of her did not the she appeal. find Evitts be We alleged error was raised that states Evitts, In the defendant distinguishable. Thus motion to trial. her com- written timely but filed a written notice by operation proeedurally plaint is barred Appeal’, which to file a ‘Statement of failed 40(b)(1). “but clause” of Rule designed to assist the Court of however, argues, Appellant she should appeal. processing in of an In records given opportunity to amend have been Evitts, specifically [Supreme] I appeal. agree. her defective notice of points compliance that rule out that with Evitts, ante, Jones, supra, jurisdictional.’ ‘is [469 this Court held not In noted In jurisdictional, at 832. that, S.Ct.] not U.S. at while Rule case, compliance subject with to Tex. instant is a restrictive statute it Jones, necessary to avoid statu at for defendant R.App.Pro., Rule 83. appeal.” tory in failed restrictions Jones had 186-87. defendant Miles, writing in April 1989. bond is appeals in as did the court 1. The court Jones, granted appellant appeals appellant in from desire of shows the did opportunity to amend a notice of We find the judgment of the trial court. comply requirements with the of the "but a notice of sufficient constitute bond is Miles, 842 S.W.2d at clause” 40(b)(1).” Tex.R.App.Pro. peal under petitioned Court to The State then 279. review Id., 279 n. 1. at appeals. We that decision the court grounds, other we dismissed on Because holding petition, that it was the State's dismissed necessary to the resolution of was not footnote improperly attempting of an interloc- However, imagine it hard the case. find so, doing utory Id. we observed in a order. In "stronger” statement dicta than our flat footnote: law in that footnote. "The record in this cause reflects with the trial court on filed an bond Jones, 796 S.W.2d at 187. I am at a loss “A shall not be affirmed or way see to in meaningful see how this reversed or an de- dismissed for Evitts. distinguished irregularities, appellate proce- It in was not distin- fects or dure, substance, guished by appellate the fact that in either of form or rule without Evitts was “not question jurisdictional,” allowing in a reasonable time to correct or irregularities.” amend such defects or “statutory whereas our rule is a restriction.” in Jones Only page earlier held that 2(b) Furthermore, Tex.R.App.Pro., pro- compliance with Rule ... was “not expediting vides that “in the interest of Id., jurisdiction^.” at 186. Nor is Rule shown, good decision or for other cause 40(b)(1) distinguished by the fact appeals court of or the Criminal rule in Evitts “designed to assist the Appeals may suspend requirements pro- processing in the records particular visions of rule in a case.” Evitts, appeal.”2 It is not on the basis of today’s majority opin- Nowhere in either Evitts, that I would revisit Jones. Jones, ion, does this Court offer a fact, may controlling.3 not be I would why apply reason Rule 83 does not to cases that Jones was a acknowledge poorly instead judice. Today, such as the one sub opinion reasoned ignored which this Court majority simply asserts that “[a] plain meaning appellate of its own rules. permitted not be to amend a notice of Jones, It is for deficiencies of this sort that Tex. out time. See Jones, R.App.Pro., Rule 88 was intended. Rule merely 187.” the Court distin- Evitts, provides: guished Miles and then wrote: Lemmons, 1992) ("The (Tex.App. As this unanimous appropriate Court noted in Antonio —San provide timely ”[o]ne function of these seeking rules is to vehicle for an out-of-time from a advance notice to appeal felony court that an final conviction is writ of habeas cor- perfected, enabling has been it to antici- pus pursuant to article 11.07 of the Code of pate prospective felony it Procedure.”). caseload for internal system Criminal And it is a used Lemmons, planning purposes.” 818 S.W.2d at 17, 1993, frequency. with some On November example, unpub- this Court handed down ten those, granted lished decisions. Of three out-of- distinguish appeals 3. While the Jones applicants alleging Court failed to time Ev- to habeas inef- factually, distinguishable itts pos- Evitts is its appeal. fective assistance of counsel on See Ex Pursche, 71,767 ture on Jones was parte heard this Court (Tex.Cr.App. No. delivered appellant’s petition on discretionary 17, 1993) for review (unpublished); parte Magee, Nov. Ex Jones, from a direct 71,770 796 S.W.2d at 17, 1993) (Tex.Cr.App. No. delivered Nov. Supreme Evitts was heard the United Rodarte, State's 71,772 (unpublished); parte Ex No. petition Court on a state's from a federal district 17, 1993) (Tex.Cr.App. (unpub- delivered Nov. granting corpus court order habeas relief. Ev- lished); Axel, parte see also Ex 757 S.W.2d 369 itts, 391, 833, 469 U.S. at 105 S.Ct. at 83 L.Ed.2d (Tex.Cr.App.1988). Evitts, Supreme at 826. In the Court held that course, just procedure Of because certain is procedures deciding appeals "the used in must appropriate in a constitutional sense does not comport the with demands of Due Process.” Id. procedure, mean it is the best or even fair. The at 105 S.Ct. at 83 L.Ed.2d at 827. And prison, below has been sentenced to Kentucky it found that the courts’ refusal to hear appeals and the court of has refused to even procedural grounds a defendant’s against review her claim that the evidence used up failed to live to that standard. Id. at 105 her was obtained in violation of law. did It so so, doing S.Ct. at 83 L.Ed.2d at 831. appellant’s lawyer because did not include in her however, Supreme the Court noted: written, timely a statement that : clearly viz is indicated the record on Kentucky ”[T]he Commonwealth of itself in complains that she of the trial court’s error in permitted post-conviction other contexts has pre-trial on her written motion. It is appropriate attack on the trial as 'the simply say remedy not efficient to to a criminal defen- appeal,' for frustrated of Ham- dant, Commonwealth, "Sorry, your lawyer magic mershoy did not use the 398 S.W.2d 883 (1966); applicant words. Come back here as an for this is but one of several solutions that relief; corpus you good argument permitted habeas have a state and federal courts have in simi- lar for ineffective assistance of counsel on cases.” you may appeal. By Id. at 105 S.Ct. at 83 L.Ed.2d at 832 obtain out-of-time (footnote omitted). way, you state-appointed the are not entitled to That, course, system proceeding, of is the we have in Texas. counsel in a habeas so make sure you you See Rodarte v. 840 S.W.2d 785 n. 4 use the words when come back.” reluctantly, in It did however. Chief Jus- that the of so “We hold Oliver-Parrott, joined by opinion in an tice instant case should not have entertained Mirabal, Hedges, asked Wilson and Justices nonjurisdictional mat- appellant’s appeal of rule-making authority to “abol- us to use our Tex.RApp.P. not cure ter. Rule does requirement in rule that a ish the this defect.” court the trial state issue, opinions, Id. Both on this are bereft specify ‘that granted permission id, J., analysis. (Teague, See at 187-90 motion were written those matters rules, dissenting). together These taken Moreno, 866 on before trial.’” ruled language, per- plain face of their should (Oliver-Parrot, C.J., concur- S.W.2d at 662 appel- hear appeals mit the court of “but ring). opined that the The Chief Justice useful complaint. Perhaps lant’s this is inadvisable. Rule “serves no clause” of 2(b) sepa- purpose.” Duggan, in a Id. Justice Perhaps given their eleva- rules and 83— opinion, correctly concurring rate noted procedure tion of over not substance —do clause”, “to purpose underlying “but viz: hardly I rightly belong in our rules. think provide appellate court with a concise so, so, of But if that were then this course. on which statement of basis rules, interpret Court should amend the He us to jurisdiction is invoked.” asked them out of existence.4 “permit out-of-time amendment reasonable appeals At one court of has noted the least Tex.R.App.Pro. appeal under the notice of discrepancy promul rules between the we J., Moreno, (Duggan, 83.” S.W.2d interpret gate by which and the decisions opinion, concurring). dissenting And in a State, 866 them. In Moreno v. ap- opined court Justice Cohen 1993), Dist.], (Tex.App. [1st its lead peals was free follow own — Houston simi First Court of faced situation requirements of construing the There, judice. the de lar to the cause sub saying one given propensity this Court’s guilty, appealing from a next. thing day thing fendant was one another Moreno, (Cohen, J., dis- complaining that the trial court erred at 663 senting). suppress. motion to The de overruling his failed, a notice of fendant had file dissent. sympathize with Justice Cohen’s comported requirements appeal that with Evitts, supra. See discussion Miles 40(b)(1). Citing clause” Rule “but 40(b)(1) not if And he is correct that Jones, supra, appeals found court Dug- serving purpose noted Justice ‘un language of rule “[t]he of our gan,5 perhaps it should be out written ” Moreno, ante, equivocally mandatory.’ However, 866 appellate rules. noted refused to at 661. The court thus proper forum for such a revision. complaint expressed on its

consider the defendant’s The concerns being appellants are peals Moreno —that merits. breath, ignor- portions of opines that relevant majority "[t]he content with 4. The has not been haste, 2(b). ing 40(b)(1) in the In its both rules 83 as follows: Rule should be read Davis, supra, to bar the instant case and in a prosecute appeal for "... order to an .in complaining the suffi- appellants therein from [occurring or nonjurisdictional defect before them, against ciency the evidence used prior plea], that occurred or error after to 40(b)(1) as majority judicially rewrites Rule well. plea, that entry the notice shall state of the holding, plain language adverse to its Faced with granted appeal or permission to the trial court changes expediently majority the words. by specify that matters were raised shall those Tex.R.App.Pro. provides: on before trial.” written motion and ruled prosecute an for a order to “[I]n added). Op. (emphasis at 46 nonjurisdictional defect or error that occurred prior entry plea state of the the notice shall to writes, seven Justice Cohen "In almost permission granted to that the trial court enacted, requirement years I have since the specify peal those were or shall matters presence infor- absence of this never seen the or by written and ruled on before motion any pur- appeal used for mation on a notice of trial.” Moreno, appeal.” pose, except to dismiss an reading plain majority that "[a] The 40(b)(1) finds J., (Cohen, and, dissenting). holding” next S.W.2d at 664 supports in the [its] needlessly subjected penalty” agree general to the “death a is notice of insuf- nonjurisdictional of dismissal for a trivial sin of omission—can ficient to raise a defect or adequately by be met our rules as written. entry to of the error that occurs only appel- We need revisit Jones and allow plea.4 disagree general I that a lants to amend defective notices of nonjurisdic- insufficient to raise a 2(b). pursuant to both Rule 88 and Rule tional defect or error that occurs entry plea thereby deny jurisdic- majority ignores Because the plain lan- Appeals tion to a to review guage rules, appellate our own and be- appellant’s plea bargained claim a case. it apparent cause does so without reason (other deny than to of a defendant simply jurisdiction. This case involves reaching appeal), without the merits of that I ultimate a issue is how defendant invoke dissent. jurisdiction of a Court of to alleged consider errors that occurred after OVERSTREET, Judge, dissenting. plea of a wherein Today, majority interprets Tex. pursuant plea bargain stands convicted to a R.App.P. [hereinafter Rule agreement. to erect a barrier ]1 to a defendant’s right nonjurisdictional to a defect or I. (in error this case of the evidence support judgment) the trial court’s arising Appellate Jurisdiction plea guilty from of a or nolo conten- jurisdiction In the case of an con pursuant 1.15, dere to Article Texas Code of power authority cerns the of an Criminal Procedure [hereinafter Art. 1.15].2 appeal. court to decide an Johnson I majority’s opinion read the holding (Tex.App 747 S.W.2d 568 [14th interpretation . —Houston pet.). jurisdiction no Dist.] Once impermissibly enlarges an reviewing invoked the exercise of its function right substantive a con- is limited its own discretion or a valid negotiated viction in plea bargained case. statute. Carter v. Op. disagree at 45. I majority with the (Tex.Cr.App.1983). of a defendant agree with Appeals. plea bargained a conviction in a agree general that a appeal3 governed by case is from a negotiated plea conviction based on a bargain insufficient to confer Prior a defendant in criminal a Court of statutory right review trial action had Tex. pretrial court’s motions. I also Code Crim.Proc.Ann. art. 44.02.5 40(b)(1) provides 1. Rule part: open person relevant has in court in waived his by jury writing of trial in accordance appeal] [Notice of shall be sufficient if it shows 1.14; provided, with Articles 1.13 and howev- the desire of the defendant to from the er, necessary that it shall be for the state to order; judgment appealable or other but if the showing introduce evidence into the record judgment upon was rendered his guilt of the defendant and said evidence shall pursuant or nolo contendere to Article 1.15. accepted by be the court as the basis for its Procedure, punish- Code of Criminal and the person and in no event shall a punishment ment assessed does not exceed the charged upon be convicted without recommended support sufficient evidence to the same. attorney, the defendant and his in order to prosecute nonjurisdictional an for a de- Op. 3. See at 45. prior entry fect or error that occurred to of the plea the notice shall state that the trial court granted permission specify to or shall emphases 4. All are mine unless otherwise indi- that those matters were raised written mo- cated. tion and ruled on before trial. provided: 5. Art. 44.02 provides part: 2. Art. 1.15 in person felony except No can be convicted of a A defendant in criminal action has the upon recorded, juiy duly right the verdict of a pre- rendered and of the under rules hereinafter defendant, upon entering unless the scribed. 52 always arises legislature an issue that the amended Article 44.02.6 evidence after Williams, State, (Tex.Cr.App. parte 703 entry 749 772 In Ex

Morris v. 1986), 674, (Tex.Cr.App.1986), a court held that Article 44.02 was 678 statute, nec limiting valid restrictive Court found that sufficient evidence the “those essary of of to matters and that the evidence under Art. 1.15 judgment, which been written motion not to support have raised to the received prior to trial or matters that the those or contendere. accept plea the of nolo (Tex. permission granted appeal.” State, 340, to trial court v. 601 S.W.2d Thornton Appeals correctly Id. at The Court of (opinion rehearing), over Cr.App.1980) emphasize, pre- State, noted I now Morris is a and grounds, Bender v. on other ruled rule ease. (Tex.Cr.App.1988). This Court S.W.2d 278 in denying in relief said habeas also repealed part in and Article 44.02 has been Williams, 678, sufficien supra at “While the replaced by Rule Rule Under support a of cy the evidence to of jurisdiction of to invoke the a Court 1.15, its supra, under and Article conviction nonjurisdietional review de of to a challenged appeal, requirements may be prior or to of fect error which occurred subject to chal conviction not be such bargained plea, case a a defendant a corpus.” lenge on collateral attack habeas (1) timely has to written notice show: court; appeal filed with clerk of trial correctly interpreted of Appeals The Court must either and state must met under prerequisites that be (a) granted permission that to the trial nonjurisdietional to Rule (b) appeal, specify or that those matters were prior entry of to or error that occurs defect ruled motion and on before written (2) pre-trial rulings. I and maintain Thus, appellate jurisdiction is trial. invoked correctly they interpreted also by giving perfected notice and to other prerequisites are no be met there 44.08, appeal pursuant to Article V.A.C.C.P. timely than a 40(b)(1)). (now Tex.R.App.Pro.Rule Lem nonjurisdietional that occur defects errors State, (Tex.Cr.App. v. mons 818 S.W.2d sufficiency of such as 1991) 468, (citing 656 S.W.2d Carter Davis v. evidence. (Tex.Cr.App.1983)). pet. (Tex.App. Worth — Fort granted). II. Ap- that the remain convinced 1.15 Article interpretation is not peals’ perfect ap- expansion of defendant’s governs how to 44.02 under Article details from what was allowed peal a criminal case. Rule always Art. has under appeal in case because a defendant perfect a notice of how present compel the State to arising negotiated plea been able from a 1.15 of conviction support judgment. implicates sufficient evidence to bargained, specifically compel ought to compliance, If one Among require- one can 1.15. embraces Art. complain non-compliance. about be has to be able ments of Art. 1.15 is that evidence always 44.02 and Article have the Article 1.15 is sufficient to establish presented that appeared to be in conflict which judg- conflict—a support accused and guilt address, though even surely legislature failed supra note 2. This Court ment. See mandatory. The compliance with both was accept recognize must defendant, punishment and the Leg. p. § assesses ch. eff. 6. Acts 65th punishment August pro- exceed punishment As Art. 44.02 does not amended vides: recommended attorney may prose- by the defendant and his action has the A defendant criminal permission of he must have cute his pre- appeal under the rules hereinafter court, except which on those matters scribed, the trial provided, defen- before the written motion upon have been raised dant has been convicted either who way appeals in no affects trial. This article before or of nolo contendere the.court, chapter. upon pursuant to Article 44.17 election 40(b)(1) recognized authors of Rule the con- correctly

flict and drafted Rule Randy BROWN, Appellant, Shawn require compliance with Art. 1.15. Unfortu- nately, majority appropriate finds it Texas, Appellee. The STATE of rewrite Rule opinion. Op. my It is belief that an opinion is de- No. 1087-92. signed dispose interpreting matters Texas, Court of Criminal applicable laws rules. It is not an and/or En Banc. appropriate forum to rewrite a rule. Jan. Moms, majority, relying heavily on supra, reasons that

misinterpreted the “but” clause of Rule majority’s reasoning, Under the opinion

our in Morris forecloses review of of evidence unless the defen-

dant obtains the trial permission court’s pretrial.

raises the issue reasoning Such majority

flawed. The recognize fails to pre-Rule

Morris is a case and that argue failed to Art. 1.15.

Therefore, their reliance on Morris is mis-

placed. majority recognize also fails to the State under Art. always 1.15 has required present

been evidence sufficient support judgment. trial court’s

The Court of correctly this case

noted that alleviated confu-

sion predecessor between its and Art. 1.15

making explicit reference to Art. 1.15 and (other

held that there are prerequisites no filing timely

than appeal)

peal nonjurisdictional defects or errors that

occur

III.

Conclusion stated,

For the reasons hereinbefore

would affirm the decision of the

Appeals. majority Because the oth- decides

erwise, I dissent.

BAIRD, J., joins.

Case Details

Case Name: Davis v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 12, 1994

Citation: 870 S.W.2d 43

Docket Number: 1212-89

Court Abbreviation: Tex. Crim. App.