Davis v. State

• Decision Date: 12 January 1994
• Docket Number: No. 1212-89,1212-89
• Citation: Davis v. State, 870 S.W.2d 43 (Tex. Crim. App. 1994)
• Parties: Edna Kaye DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 43

870 S.W.2d 43

Edna Kaye DAVIS, Appellant, v.The STATE of Texas, Appellee.

No. 1212-89.

Court of Criminal Appeals of Texas En Banc.

Jan. 12, 1994.

Richard Alley, Fort Worth, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall and David K. Chapman, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S AND STATE'S PETITIONS FOR

DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant pled nolo contendere to the charge of aggravated possession of amphetamine.The trial court accepted appellant's plea, found her guilty of the offense, and imposed a seven-year sentence recommended by the prosecutor and agreed to by appellant.SeeArticle 1.15, V.A.C.C.P. Pursuant toTex.R.App.Pro. 40(b)(1), appellant filed a "general" notice of appeal from her conviction.¹

The Court of Appeals addressed, among other things, these issues: (1) whether the trial court erroneously denied appellant's pretrial motion to suppress the evidence, and (2) whether the evidence was sufficient to support her conviction.Davis v. State, 773 S.W.2d 404(Tex.App.--Fort Worth1989).The Court of Appeals held appellant waived the issue of whether the trial court erroneously denied appellant's suppression motion, because her "general" notice of appeal failed to comply with the "extra-notice" requirements of Rule 40(b)(1).Davis, 773 S.W.2d at 408.Relying on Engelking v. State, 750 S.W.2d 213(Tex.Cr.App.1988), the Court of Appeals also held the evidence insufficient to support appellant's conviction.Davis, 773 S.W.2d at 407-08.The State and appellant filed petitions for discretionary review.²We reverse the judgment of the Court of Appeals.

The State claims appellant's "general" notice of appeal failed to confer jurisdiction on the Court of Appeals to address appellant's sufficiency of the evidence claim.In relevant part, Rule 40(b)(1) provides:

"[Notice of Appeal] shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial."(Emphasis Supplied).

The Court of Appeals held the "but" clause of Rule 40(b)(1) only applies where a defendant appeals nonjurisdictional defects or errors that occurred prior to entry of the plea.Davis, 773 S.W.2d at 406(emphasis in original).Since sufficiency of the evidence is a nonjurisdictional defect occurring after entry of the plea, the Court of Appeals held the "but" clause of Rule 40(b)(1) does not apply to appellant's sufficiency claim, and appellant's "general" notice of appeal was sufficient for the Court of Appeals to review this claim.Davis, 773 S.W.2d at 406(emphasis supplied).

The State, in effect, claims this interpretation of Rule 40(b)(1) impermissibly gives a defendant a greater scope of appeal than the Legislature intended.We agree.

"A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed."Article 44.02, V.A.C.C.P., as enacted in 1925;former Article 813,C.C.P. 1925;see generallyLemmons v. State, 818 S.W.2d 58, 59-63(Tex.Cr.App.1991).In 1977, the Legislature added the following proviso to Article 44.02: ³

".... provided, however, before the defendant[who has been convicted based on a negotiated plea and the trial court assesses punishment recommended by the prosecutor and agreed to by the defendant and his attorney] may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial...."(Emphasis Supplied).

By order dated December 18, 1985, this Court repealed the proviso of Article 44.02, and replaced it with Rule 40(b)(1), effective September 1, 1986.⁴See generallyLemmons, 818 S.W.2d at 62.In delegating authority to this Court to promulgate a comprehensive body of appellate rules in criminal cases, the Legislature expressly provided that these rules could not abridge, enlarge or modify the substantive rights of a litigant.⁵See generallyLemmons, 818 S.W.2d at 59-63.

A defendant's legislatively granted right of appeal is a substantive right.SeeLemmons, 818 S.W.2d at 62;Morris v. State, 749 S.W.2d 772, 774(Tex.Cr.App.1986).In Morris, the defendant's notice of appeal limited his appeal to the trial court's adverse ruling on his pretrial motion to quash the indictment; however, the only issue the defendant raised on appeal was the sufficiency of the evidence "to support the plea of guilty (sic)."Morris, 749 S.W.2d at 773.We held the defendant had no right to appeal the sufficiency of the evidence to support a plea-bargained conviction under the proviso to Article 44.02 unless the defendant obtained the trial court's permission or raised the issue by written motion filed prior to trial, which he failed to do; therefore, the Court of Appeals lacked jurisdiction over the appeal.SeeMorris, 749 S.W.2d at 774-75.In promulgating Rule 40(b)(1), this Court acted on the assumption "that the body of caselaw construing the proviso [to Article 44.02] would prevail and still control."Lemmons, 818 S.W.2d at 62.Therefore, we hold appellant's "general" notice of appeal under Rule 40(b)(1) failed to confer jurisdiction on the Court of Appeals to review appellant's sufficiency claim.SeeMorris, 749 S.W.2d at 774-75.

A plain reading of Rule 40(b)(1) supports this holding, and does not enlarge a defendant's substantive right of appeal.The relevant portions of Rule 40(b)(1) should be read as follows:

".... in order to prosecute an appeal for a (1) nonjurisdictional defect [occurring before or after the plea], or (2) error that occurred prior to entry of the plea, the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial...."

Reading the phrase "that occurred prior to entry of the plea" as modifying only "error" makes Rule 40(b)(1) consistent with Morris.SeeLemmons, 818 S.W.2d at 62(prior caselaw construing the proviso of Article 44.02 prevails and still controls).Moreover, reading Rule 40(b)(1) this way also makes it consistent with the admonishment in Article 26.13(a)(3), V.A.C.C.P., ⁶ that a trial court is required to give a defendant prior to accepting a guilty or nolo contendere plea.

We sustain the State's first and second grounds for review.We find it unnecessary to address the State's third and fourth grounds for review.

Appellant claims the Court of Appeals erred in failing to address the trial court's ruling on her pretrial suppression motion.The statement of facts from the plea proceeding reflects appellant pled nolo contendere with the understanding, and the trial court's permission, that she would be able to appeal the trial court's ruling on her suppression motion.However, appellant filed only a "general" notice of appeal.

A "general" notice of appeal is insufficient to confer jurisdiction on a Court of Appeals to review a trial court's ruling on a pretrial suppression motion in an appeal from a conviction based on a negotiated plea bargain.SeeJones v. State, 796 S.W.2d 183(Tex.Cr.App.1990);Morris, 749 S.W.2d at 774-75.Moreover, this record contains no "Order Limiting Defendant's Appeal" reciting the extra-notice requirements of Rule 40(b)(1), or any other document which combined with appellant's notice of appeal substantially complies with Rule 40(b)(1), that would confer jurisdiction on the Court of Appeals to address appellant's suppression issue.SeeRiley v. State, 825 S.W.2d 699, 700-01(Tex.Cr.App.1992).We overrule appellant's first ground for review.

Appellant also claims the Court of Appeals erred in refusing to permit her to file an amended notice of appeal after the Court of Appeals had handed down its opinion.A defendant may not be permitted to amend a notice of appeal out of time.SeeJones, 796 S.W.2d at 187.We overrule appellant's second ground for review.

Finally, appellant raises the following issues: (1) whether the failure of her trial counsel to file a legally sufficient notice of appeal was ineffective assistance of counsel which denied her a meaningful right of appellate review, and (2) whether her plea was involuntary since it was contingent upon her being able to appeal the motion to suppress issue.While we granted appellant's petition on these issues, we now note that appellant did not raise and argue either of these issues in her brief in the Court of Appeals, and that court consequently did not address them.We previously have held that this Court cannot review issues which have not first been properly presented to and ruled on by the Court of Appeals.SeeWard v. State, 829 S.W.2d 787, 795-96(Tex.Cr.App.1992);Tallant v. State, 742 S.W.2d 292, 294(Tex.Cr.App.1987).⁷Based on these authorities, we will not address appellant's third and fourth grounds for review, and we dismiss those grounds as improvidently granted.⁸

We hold appellant's "general" notice of appeal failed to confer jurisdiction on the Court of Appeals to address the trial court's ruling on appellant's suppression motion, and the sufficiency of the evidence to support her conviction.Since appellant raised no jurisdictional issues in the Court of Appeals, we reverse the judgment of the Court of Appeals and order the appeal dismissed for lack of jurisdiction.SeeMorris, 749 S.W.2d at 775;Davis, 773 S.W.2d at 406-08.

MEYERS,...