White v. StateWhite v. State
- Reporters:
- ,
- Before:
- Oliver-Parrott
Concurrence Opinion
concurring.
While I concur with the majority, reluctantly following the prevailing law in this *677state, I write to proclaim that the prevailing law is wrong!
In Davis v. State, 870 S.W.2d 43 (Tex.Crim.App.1994), the Court of Criminal Appeаls addressed the issue of whether the appellate rule concerning notice of appeal impermissibly gave a defendant a greater sсope of appeal than the Legislature intended. Id. at 45. The court stated that it had replaced the former proviso of Tex.Code CRIM.P.Ann. art. 44.02 (Vernоn 1979 & Supp. 1995) with
The former proviso gave a defendant entering a plea of guilty pursuant to an agreement as to punishment the absolute right to appeal matters raised by written motion filed prior to trial:
[BJefore the defendant who has been convicted upon either his plea of guilty or plеa of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appеal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.
Tex.Code Crim.ProcAnn. art. 44.02 (Vernon 1979) (former proviso) (emphasis added).1
[I]f the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the рunishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to рrosecute an appeal for a nonjurisdictional defect or error that occurred prior to the entry of the plea the notice shаll state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before triаl.
Prior to the decision of the Court of Criminal Appeals in Davis v. State, this Court had addressed the identical issue raised in Davis. Refusing to follow the courts of appeals which had upheld rule 40(b)(1) even though it enlarged the scope of a defendant’s appeal, this Court squarely held that rule 40(b)(1) impermissibly expanded the scope of a litigant’s appeal and, instead of applying rule 40(b)(1), we enforced the prior law under the former proviso to article 44.02. See Rhem v. State, 846 S.W.2d 870, 873-74 (Tex.App.—Houston [1st Dist.] 1992), aff‘d, 873 S.W.2d 383 (Tex.Crim.App.1994).2
Contrary to the situation in Davis, there is no way to construe the rule 40(b)(1) requirement that “the notice shall state that the trial court granted permission to aрpeal or shall specify that those matters were raised by written motion and ruled on before trial” so as to conform to the former proviso of аrticle 44.02, which had no such requirement. The Court of Criminal Appeals exceeded its rule-making authority when it crafted a rule of appellate procedure which abridged the substantive right of a defendant appealing a pretrial matter after entering an agreed plea. It has compounded the error by enforcing the rule, thereby denying appeals in situations where a defendant previously had an unfettered right to appeal. See, e.g., Lyon v. *678State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994).
It is up to the Court of Criminal Appeals to correct its own error. Until it does so, we are constrained to follow its error. The effect in the present case is to deny, оr at least postpone, review of appellant’s point of error challenging the trial court’s ruling on appellant’s motion to suppress evidence. The Court of Criminal Appeals prevents us from providing a speedy resolution of appellant’s rightful appeal.
Principles of judicial restraint require that I be bound by precedent from the higher court, but they do not require that I be gagged. Protesting vigorously the failure of the Court of Criminal Appeals to provide the appellate rights which the Legislature intended, I concur for now in the dismissal of appellant’s appeal.
Notes
. Act of August 30, 1965, 59th Leg., R.S. ch. 722, 1965 Tex.Gen.Laws 317, 511, partially repealed by Act of August 26, 1985, 69th Leg. R.S., ch. 685, § 4, 1986 Tex.Gen.Laws 2472, 2473 (current version at TexR.App.P. 40(b)(1)).
. The Court of Criminal Appeals reached the same result relying upon the rationale of Davis rather than the reasoning of this court in Rhem.
Lead Opinion
OPINION
OLIVER-PARROTT, Chief Justice.Appellant was charged by indictment with unlawfully, intentionally, and knowingly possessing with intent to deliver a controlled substance, namely cocaine, weighing less than 28 grams. After an аdverse ruling at a motion to suppress hearing, appellant pled guilty to possession of a controlled substance. The judge assessed punishment at tеn-years confinement pursuant to a plea bargain.
Appellant filed a “general” notice of appeal in which he complains of the triаl court’s failure to grant appellant’s pretrial motion to suppress. The State argues that this Court is without jurisdiction to address this point of error because appellant’s notice of appeal does not comply with the requirements of
Appeal is perfected in a criminal case by giving timely notice of appeal.... Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire оf the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo cоntendere pursuant to Article 1.15 Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosеcutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdietional defect or error thаt occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall speeify that those matters were raised by written motion and ruled on before trial[.] ...
In the instant case, the judgment was rendered on appellant’s plea of guilty and the рunishment agreed to by the defendant and his attorney did not exceed the recommended punishment. Appellant’s notice of appeal did not specify that he was appealing matters which were raised by written motion and ruled on before trial nor did the appeal state that the court granted рermission for the appeal. Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994). Unfortunately, a “general” notice of appeal is insufficient to confer jurisdiction on this Court to review a trial court’s ruling on a pretrial suppression based on a negotiated plea bargain. Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App.1994); Jones v. State, 796 S.W.2d 183 (Tex.Crim.App.1990); Forcha v. State, 894 S.W.2d 506, 509 (Tex.App.—Houston [1st Dist.] 1995, no pet.); Moreno v. State, 866 S.W.2d 660 (Tex.App.—Houston [1st Dist.] 1993, no pet.).
The prior sentence is prefaced with the word “unfortunately” because we see no useful purpose that is served by rule 40(b)(1). The harsh result mandated by rule 40(b)(1) is the denial of an appeal of an otherwise ap-рealable matter, a written motion that was ruled on before trial.
We do not have jurisdiction to consider the denial of appellant’s pretrial motion to suppress, but we urge the Court of Criminal Appeals to repeal the specificity requirement of rule 40(b)(1), or at least allow amendment under
We dismiss the appeal.