Moreno v. State, 01-92-00820-CR
| Decision Date | 28 October 1993 |
| Docket Number | No. 01-92-00820-CR,01-92-00820-CR |
| Parties | Julio MORENO, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Polland & Cook, Gary M. Polland, Houston, for appellant.
John B. Holmes, Jr., Alan Curry, Houston, for appellee.
Before OLIVER-PARROTT, C.J., and DUGGAN, HUTSON-DUNN, MIRABAL, O'CONNOR, WILSON and HEDGES, JJ.
We withdraw our previous opinion of August 5, 1993, and issue this opinion in its stead. We deny appellant's motion for rehearing and affirm the judgment.
Appellant, Julio Moreno, was charged with the felony offense of possession of a controlled substance, and, in two enhancement paragraphs, was alleged to have previously committed the offenses of aggravated robbery and carrying a handgun while on a premises licensed to sell and serve alcoholic beverages. Appellant moved to suppress certain evidence, and the trial court denied his motion.
Appellant then pled guilty to the offense and true to the allegations in the enhancement paragraphs. The court found appellant guilty and found the allegations in the enhancement paragraphs true. The court assessed appellant's punishment at confinement for 25 years.
The adequacy of appellant's notice of appeal of the court's denial of his motion to suppress is the dispositive issue in his appeal. We affirm.
Appellant, in two points of error, contends that the trial court erred in denying his motion to suppress. The State argues that appellant failed to preserve error. We agree with the State.
Texas Rule of Appellate Procedure 40(b)(1) states in relevant part that:
[I]f the judgment was rendered upon [the defendant's] 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.
TEX.R.APP.P. 40(b)(1) (emphasis added).
Here, judgment was rendered upon appellant's plea of guilty pursuant to article 1.15. See TEX.CODE CRIM.P.ANN. art. 1.15 (Vernon Supp.1993). The punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney. The alleged error of which appellant complains is nonjurisdictional and occurred prior to the entry of his plea. For these reasons, appellant's notice of appeal was required to meet the dictates of rule 40(b)(1).
Appellant's notice of appeal includes the trial court cause number, the style of the case, and the trial court number and county. It is entitled "Written Notice of Appeal." It is signed by appellant and his attorney, and includes his attorney's address, telephone number, and State Bar number. It recites the amount of appellant's appeal bond ("no bond") and the date on which the bond was set. The signature of the judge appears below the recitation of bond.
The substantive content of appellant's notice of appeal is as follows:
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW THE DEFENDANT, Julio Moreno, on this the 4th day of August, A.D. 1992, and within thirty days of sentence having been pronounced in the above numbered and styled cause, and 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).
WHEREFORE, premises considered, Defendant prays this written notice of appeal be entered of record this date.
THE DEFENDANT further requests that the Court set an appeal bond.
The notice does not state that the trial court granted permission to appeal or specify that the motion to suppress 1 was raised by written motion and ruled on before trial.
The language of rule 40(b)(1) is "unequivocally mandatory." Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App.1990). In Moshay v. State, 828 S.W.2d 178 (Tex.App.--Houston [14th Dist.] 1992, no pet.), the Fourteenth Court of Appeals considered this same issue. There, like here, the notice of appeal conveyed that the defendant wanted to appeal his conviction, but did not state that the trial court had granted him permission to appeal or specify that his motion to suppress was raised by written motion and was ruled on before trial. Id. The defendant brought two points of error attacking the trial court's denial of his motion to suppress. Id. The court refused to consider the defendant's points of error, holding that his "notice of appeal did not comply with the rule [40(b)(1) ], and is not sufficient to preserve for appellate review such non-jurisdictional defects as the denial of his pretrial motion." Id.
We agree with the result in Moshay. Pursuant to rule 40(b)(1), that result must occur here, as well. 2
We overrule appellant's points of error and affirm the judgment of the trial court.
I join the decision to affirm the judgment. I withdraw my previous opinion of August 5, 1993, and issue this one in its stead solely to reflect that I also join the decision to overrule appellant's motion for rehearing.
I believe this case is controlled by Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App.1990). Jones requires us to follow the mandatory requirements of TEX.R.APP.P. 40(b)(1).
Nevertheless, I agree with Justice Cohen that rule 40(b)(1) serves no useful purpose, and for the reasons stated in his dissenting opinion, I also believe the Court of Criminal Appeals should abolish the requirement in rule 40(b)(1) that a notice of appeal state that the trial court granted permission to appeal or specify "that those matters were raised by written motion and ruled on before trial."
With these comments, I join the decision to affirm.
I join the decision to affirm. I withdraw my previous opinion of August 5, 1993, and issue this one in its stead solely to reflect that I also join the decision to overrule appellant's motion for rehearing.
I reluctantly agree that Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App.1990), not Miles v. State, 842 S.W.2d 278, 279 n. 1 (Tex.Crim.App.1989), governs the disposition of this appeal. The harsh result is the denial of an appeal the appellant sought for a valid reason under rule 40(b)(1): review of a matter "raised by written motion and ruled on before trial." No one disputes that Mr. Moreno and his trial attorney sought to appeal an adverse ruling on a pretrial motion to suppress evidence.
Justice Cohen correctly points out in his dissenting opinion that: (1) Jones was decided more recently than Miles, although Miles was reported more recently; and (2) Jones does not "distinguish, overrule, or mention the Miles opinion." I disagree with his conclusion that we are therefore free to ignore the more recent Jones and follow the earlier Miles. I believe that when our Court of Criminal Appeals speaks twice on the identical subject, we are bound by that court's most recent pronouncement, even when it ignores that body's last previous--and conflicting--treatment of the same topic.
I also disagree with Justice Cohen's observation that there is "no purpose whatsoever" in TEX.R.APP.P. 40(b)(1)'s requirement that the notice of appeal either state that the trial judge granted permission to appeal or list the motions raised and ruled on before trial. I believe the rule is intended for a laudable purpose: to provide the appellate court with a concise statement of the basis on which appellate jurisdiction is invoked.
In fact, the defect in Mr. Moreno's notice of appeal was not brought to our attention until the State filed its motion to dismiss the appeal more than seven months after the notice. This was after the trial court appointed an attorney to represent the indigent defendant, after a statement of facts was prepared by the court reporter and filed, and after the appellant's brief was researched, prepared, and filed, all at public expense. Such a delay would surely be the basis for a finding of waiver of the defect or laches in its assertion, but for the fact that the defect in the notice is jurisdictionally fatal under Jones.
In keeping with the spirit of Texas Supreme Court decisions (cited by Justice Cohen) allowing defects in pleading to be corrected by amendment before imposing the "death penalty" of dismissal, I join others on this Court in urging the Court of Criminal Appeals to revisit Jones and permit reasonable out-of-time amendment of the notice of appeal under TEX.R.APP.P. 83.
I dissent from the decision to affirm the judgment. I withdraw my previous opinion of August 5, 1993, and issue this one in its stead solely to reflect that I also dissent from the decision to deny appellant's motion for rehearing.
The Court holds that Moreno waived everything by failing to state in his notice of appeal that the trial judge granted permission to appeal or to specify the matters raised by written motion and ruled on before trial. It does so even though the record before us undisputedly shows that appellant raised by written motion the very points he wishes to raise by appeal and the trial judge overruled the motions before trial; however, it is also undisputed that although appellant did what was necessary to appeal, he failed to write down on his notice of appeal that he did so, as required by TEX.R.APP.P. 41(b)(1). The Court relies on Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App.1990), which held that compliance with this requirement of TEX.R.APP.P. 40(b)(1) is...
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