Johnson v. State, 0956-01.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 84 S.W.3d 658
• Docket Number: No. 0957-01.,No. 0956-01.,0956-01.,0957-01.
• Parties: Ronald JOHNSON & Annie Washington, Appellants, v. The STATE of Texas.
• Decision Date: 11 September 2002

84 S.W.3d 658 Ronald JOHNSON & Annie Washington, Appellants,
v.
The STATE of Texas. No. 0956-01. No. 0957-01. Court of Criminal Appeals of Texas. En Banc. September 11, 2002.

Page 659

George Jacobs, Houston, for Appellant.

Betty Marshall, Asst. State Atty., Austin, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, KEASLER, JJ., joined.

In this case we reaffirm the rule that a defendant's "general" notice of appeal from a plea-bargained conviction does not invoke the jurisdiction of the Court of Appeals.

After their motions to suppress evidence were denied, the appellants pled guilty to the charged drug offenses, pursuant to plea bargains which were honored by the trial court. The appellants filed "general" notices of appeal which, in relevant part, stated that the named appellant "excepting to the ruling of the court, filed this written notice of appeal of said conviction to the Court of Appeals pursuant to Texas Rule of Appellate Procedure 40(b)(1)."¹

The appellants claimed on appeal that their motions to suppress were erroneously denied. The State responded that appellants' "general" notices of appeal did not invoke the jurisdiction of the Court of Appeals to address the merits of appellants' nonjurisdictional claims. In each case the Court of Appeals decided that the appellants substantially complied with Rule 25.2(b)(3) because a handwritten notation on the trial court's judgment recited "11-16-98 `MTN. TO SUPPRESS'" close to a space marked "Notice of Appeal" and a November 16, 1998, docket entry stated that appellants "gave written notice of appeal as to motion to suppress only" (underlining in original). See Johnson v. State, 47 S.W.3d 701, 704 (Tex.App.-Houston [14th Dist.] [April 26,] 2001) ("[s]ubstantial compliance with [Rule 25.2(b)(3)] is sufficient to confer jurisdiction" and "judgment notation and the docket entry constitute[d] substantial compliance sufficient to confer jurisdiction" on court of appeals); Washington v. State, slip op. at 2-3, 2001 WL 421961 (Tex.App.-Houston [14th Dist.], No. 14-99-00007-CR, delivered April 26, 2001) (nonpublished) (same).

We exercised our discretionary authority to review these decisions. Specifically, we granted review to address the following questions:

1. Is "substantial compliance" sufficient to satisfy the notice of appeal requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure?

Page 660

2. Do a judgment notation and a docket entry referring to the defendant's motion to suppress constitute "substantial compliance" sufficient to satisfy the notice of appeal requirements of Rule 25.2(b)(3)?

In Lyon v. State and Davis v. State, we held that a defendant's "general" notice of appeal from a plea-bargained conviction did not invoke the jurisdiction of the Court of Appeals to review nonjurisdictional claims under Former Rule 40(b)(1) (now Rule 25.2(b)(3)(B) & (C)). See Lyon v. State, 872 S.W.2d 732, 736 (Tex.Cr.App.), cert. denied, 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994); Davis v. State, 870 S.W.2d 43, 47 (Tex.Cr.App.1994). In White v. State, we unanimously held, consistent with Lyon and Davis, that a defendant's "general" notice of appeal from a plea-bargained conviction did not invoke the jurisdiction of the Court of Appeals to review jurisdictional claims under Rule 25.2(b)(3)(A). See White v. State, 61 S.W.3d 424, 429 (Tex.Cr.App.2001).² In Riley v. State, we decided that a plea-bargaining defendant's "general" notice of appeal, "coupled with the [trial] court's order" reciting the Rule 40(b)(1) "extranotice" requirements for such a notice of appeal, "substantially complied with Rule 40(b)(1)" and, therefore, invoked the jurisdiction of the Court of Appeals to review nonjurisdictional claims. See Riley v. State, 825 S.W.2d 699, 700-01 (Tex.Cr.App. 1992).

The appellants assert that the Court of Appeals had jurisdiction to review their claims under Riley's "substantial compliance" rule. We decide that a plea-bargaining defendant's notice of appeal that "substantially complies" with Rule 25.2(b)(3) invokes the jurisdiction of the Court of Appeals but that Riley and the Court of Appeals in these cases misapplied this "substantial compliance" rule.

A "general" notice of appeal, like those here, and in Riley, does not "substantially comply" with Rule 25.2(b)(3). Cf. Missouri Pac. R.R. Co. v. Dallas County Appraisal Dist., 732 S.W.2d 717, 721 (Tex. App.-Dallas 1987, no writ) ("substantial compliance" means one has performed the "essential requirements" of a statute) (internal quotes omitted). As we have held in another context, "no compliance" is not "substantial compliance."³ To claim that a notice of appeal is in "substantial compliance" when in fact the notice completely omits the required averments is to engage in a legal fiction.⁴ Riley and the Court of Appeals in these cases misapplied the "substantial compliance" rule by looking elsewhere in the record beyond the notices of appeal themselves to decide that the Court of Appeals had jurisdiction. But, the notices of appeal themselves have to "substantially comply" with Rule 25.2(b)(3) to invoke the jurisdiction of the Court of Appeals. See White, 61 S.W.3d at 428 (appellate jurisdiction invoked by giving proper notice of appeal); Lyon, 872 S.W.2d at 734-36 (same); Davis, 870 S.W.2d at 46-47 (same).⁵

Page 661

The dissenting opinion suggests that (1) our adoption of rules of appellate procedure (Former Rule 40(b)(1) and current Rule 25.2(b)(3)), mandating the "extra-notice" requirements in the notice of appeal from a plea-bargained conviction, exceeded our limited legislatively-granted rule-making authority, and (2) our decisions in White, Lyon and Davis making these "extra-notice" requirements in the notice of appeal a jurisdictional requirement abridged the substantive rights of plea-bargaining defendants, because the "plain" language of the 1977 legislative amendments to Former Article 44.02 did not mandate these "extra-notice" requirements for a notice of appeal.⁶ The dissenting opinion also suggests that cases such as White, Lyon and Davis are inconsistent with the legislative intent of the 1977 legislative amendments to Former Article 44.02.

Over the years we have fully considered these claims and have rejected them. See, e.g., White, 61 S.W.3d at 428; Lyon, 872 S.W.2d at 734-36; Davis, 870 S.W.2d at 46-47. We are not inclined to revisit them again. Any change in the law should come via legislative enactment or amendment to the rules of appellate procedure.

The judgments of the Court of Appeals are reversed and the appeals are dismissed.

JOHNSON, J., filed a dissenting opinion in which HOLCOMB, J., joined.

COCHRAN, J., filed a dissenting opinion in which PRICE, J., joined.

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Notes:

1. The applicable rule here, however, is Rule 25.2(b)(3), Texas Rules of Appellate Procedure, which provides that a defendant's notice of appeal from a plea-bargained conviction must (A) "specify that the appeal is for a jurisdictional defect;" or (B) "specify that the substance of the appeal was raised by written motion and ruled on before trial;" or (C) "state that the trial court granted permission to appeal."

Former Rule 40(b)(1), in relevant part, provided that, "in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea," a defendant's notice of appeal from a plea-bargained conviction "shall state that the trial court granted permission to appeal" or that "those matters [raised on appeal] were raised by written motion and ruled on before trial."

2. Under Former Rule 40(b)(1), a defendant's "general" notice of appeal from a plea-bargained conviction invoked the jurisdiction of the Court of Appeals to address jurisdictional claims. See White, 61 S.W.3d at 426-27.

3. Cain v. State, 947 S.W.2d 262, 263-64 (Tx. Cr.App.1997) (Texas Code of Criminal Procedure, Article 26.13 admonishments); see also Morales v. State, 872 S.W.2d 753, 754-55 (Tx.Cr.App.1994) and at 756 (Meyers, J., concurring).

4. See Cain, 947 S.W.2d at 264 ("To claim that an admonishment was in substantial compliance even though it was never given is a legal fiction").

5. We also note that the dicta in Davis that factually distinguished Riley did not constitute approval of Riley's application of the "substantial compliance" rule. See Davis, 870 S.W.2d at 47. This dicta merely acknowledged that it was unnecessary in Davis to address whether Riley correctly applied the "substantial compliance" rule since Davis did not present the same facts as Riley.

6. See Act of August 26, 1985, 69th Leg., ch. 685, Sections 1-4, 1985 Tex. Gen. Laws, 2472-2475 (authorizing this Court to promulgate rules of procedure in criminal cases that do not abridge a litigant's substantive rights); Section 22.108(a), Tex. Gov't Cd., (rules promulgated by this Court cannot abridge the substantive rights of a litigant); Lyon, 872 S.W.2d at 737-42 (Clinton, J., dissenting); Davis, 870 S.W.2d at 47-51 (Clinton, J., dissenting).

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JOHNSON, J., filed a dissenting opinion in which HOLCOMB, J. joined.

I respectfully dissent. The record here shows an intent to appeal a pretrial motion and the trial court's knowledge of that intent; the record contains no indication that, with that knowledge, the trial court denied permission to appeal. The record shows substantial compliance with the requirements of Texas Rule of Appellate Procedure 25.2(b)(1). If the record indicates that the appellant has substantially complied with the rules, justice is ill-served when we demand that the factors which comprise "substantial compliance" be written on a particular piece of paper.

The current rule rewards liars. Nothing prevents an appellant from claiming a non-existent jurisdictional defect or a nonexistent pretrial motion. Even if the trial court...