Shute v. State, 013-87

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation744 S.W.2d 96
Docket NumberNo. 013-87,013-87
PartiesJohn Lee SHUTE, Appellant, v. The STATE of Texas, Appellee.
Decision Date06 January 1988

Page 96

744 S.W.2d 96
John Lee SHUTE, Appellant,
The STATE of Texas, Appellee.
No. 013-87.
Court of Criminal Appeals of Texas,
En Banc.
Jan. 6, 1988.

Page 97

Ken J. McLean (Court-appointed), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and William J. Delmore, III and Ruben Perez, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.



Appellant entered a plea of not guilty before the court to the charge of attempted capital murder. He was convicted and the court assessed punishment at imprisonment for thirty-five years. In an unpublished opinion, the Court of Appeals dismissed for want of jurisdiction. Shute v. State, No. C14-86-840 CR (Tex.App.--Houston [14th Dist.] 1986). Appellant's petition for discretionary review was granted, challenging the ruling of the Court of Appeals on the sufficiency of appellant's notice of appeal.

Appellant was sentenced on September 30, 1986. Appellant gave oral notice of appeal on September 30, 1986. The oral notice was reduced to writing by the clerk of the court on October 8, 1986. An examination of the writing executed by the clerk shows that the form used was merely an acknowledgment by the court of receipt of appellant's oral notice. It was not an independent written notice of appeal as required by Tex.R.App.Pro. 40(b)(1). While such notice may have been sufficient under the prior statute, Article 44.08(a), the current Rules of Appellate Procedure embody the requirement of written notice. Tex.R.App.Pro. 40(b)(1).

Appellant had until October 30, 1986, to file his written notice of appeal. Tex.R.App.Pro. 40(b)(1), 41(b)(1). No motion for new trial was filed. No timely motion for extension of time to file the notice of appeal was filed. No out-of-time appeal has been granted. The only written notice of appeal on record was filed on November 19, 1986, more than two weeks late. In his brief, appellant concedes he knew the requisites of the Rules of Appellate Procedure but held mistaken beliefs as to the sufficiency of his actions. In the absence of a timely, written notice of appeal, the lower court was correct in stating they were without jurisdiction to entertain the appeal. Martin v. State, 654 S.W.2d 800 (Tex.App.--Houston [14th Dist.] 1983, no pet.).

We have carefully reviewed the briefs of the respective parties and the opinion of the Court of Appeals and have determined the decision of the Court of Appeals correct. The judgment of the Court of Appeals is affirmed.

DUNCAN, J., not participating.

MILLER, J., concurs in the result.

CLINTON, Judge, concurring.

Appellant's petition for discretionary review implicates certain "new" rules. Texas Rules of Appellate Procedure became effective September 1, 1986, and the instant oral notice of appeal was given September 30, 1986. Presented by his sole ground of review is an issue we determined

Page 98

warranted review pursuant to Tex.R.App.Pro. Rule 200(c)(4), viz:

"The Court of Appeals erred by holding that TRAP 40(b)(1) mandates that written notice of appeal be filed by appellant or his counsel personally in the face of a document in the transcript, filed by the clerk, reflecting that written notice of appeal was indeed given."

Such is an important question, and that the opinion of this Court actually answers it demonstrates that our grant of review was most topical; for reasons about to be given I agree the answer is correct.

Practically from the beginning in this jurisdiction, that a defendant must take the initiative to make known his intent and purpose to appeal has always been the rule. See Lawrence v. The State, 14 Tex. 432 (1855):

"[T]he party aggrieved by the decision of the [trial] court ... must in some way manifest his determination not to abide the decision, but to invoke a revision of the judgment by the appellate court; that is, he must appeal, and that he has done so must appear by the record to enable this court to revise the judgment of the District court in a criminal case."

Within two years thereafter the Legislature adopted its first code of criminal procedure, and article 726 thereof prescribed how an appeal was to be initiated. That statute, soon held "mandatory and imperative," required an appeal be taken "by giving notice thereof in open court, and having the same entered of record." See, e.g. Long v. The State, 3 Tex.App. 322 (Ct.App.1877), and prior Supreme Court cases therein cited; see also Lorance v. State, 20 S.W. 361 (Tex.Cr.App.1892). Though revised in 1965 and again in 1981, former article 44.08, C.C.P., still permitted notice of appeal to be given "orally in open court," while providing an alternative, viz: "in writing and filed in duplicate with the clerk." Common custom and practice opted for oral notice of appeal. See McCormick & Blackwell, Texas Criminal Forms and Trial Manual § 79.05, 8 Texas Practice 189. Whatever its prescribed form, the Court has always held compliance with the applicable statute is jurisdictional. See decisions annotated under former article 44.08, at nos. 35-39.

Then along came the "new" rules of appellate procedure, particularly Rules 40(b)(1) and 41(b)(1) which are our concern today. 1 Rule 40(b)(1) is said to have been "based on CCP Art. 44.08 with some modifications and deletions," Proposed Integrated Code, 48 Tex.B.J. 144, at 153 (Comment to proposed rule 20). One main deletion was that notice of appeal "may be given orally in open court." 2

Given that the goal of the new rules of appellate procedure is uniformity and the framers deliberately deleted the oral notice of appeal in favor of a written notice such as then required by Tex.R.Civ.Pro. 356(c), we may look to the civil side for guidance in resolving the issue presented in the instant cause.

Page 99

Germane civil rules went through much the same metamorphosis. See Texas Animal Health Commission v. Nunley, 598 S.W.2d 233 (Tex.1980), which is squarely on point, viz:

"Rule 354(c) requires that appellants, not required to file appeal bonds, 'file a notice of appeal which shall be filed with the clerk.' Before January 1, 1976, Rule 353 allowed a notice of appeal to be made 'in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute[s] of the Court.' The Commission contends this is still the rule.... The rules were changed by removing the above language in Rule 353 and amending Rule 354 to require the notice of appeal to be filed separately with the clerk. Attempting to provide notice of appeal in the manner previously authorized does not comply with Rule 354(c)."

Id., at 234 (my emphasis). 3

Accordingly, the Supreme Court held that "Rule 354(c) requires the filing of a separate notice of appeal with the clerk," and because the Commission had not done so, dismissed its appeal for want of jurisdiction. Ibid. Thus, the opinion below and its order are correct. 4

For the reasons given, then, I concur with essential conclusions of the Court and, therefore, join its opinion and judgment.

TEAGUE, Judge, dissenting.

"Oh, East is East, and West is West, and never the twain shall meet,

Till Earth and Sky stand presently at God's great Judgment Seat;

But there is neither East nor West, Border, nor Breed, nor Birth,

When two strong men stand face to face, though they come from the ends of the earth."

Kipling, "The Ballad of East and West"

Presiding Judge Onion, in the dissenting opinion that he filed in McIntire v. State, 698 S.W.2d 652, 662 (Tex.Cr.App.1985) (Opinion on Appellant's Motion for Rehearing on Petition for Discretionary Review), correctly observed the following: "The new procedure as to giving of the notice of appeal in criminal cases ... has caused confusion as well as questions of jurisdiction. (Citations omitted.)" 698 S.W.2d at 664, fn. 3. I find that today's majority opinion gives true meaning to those words by our Presiding Judge.

In affirming the court of appeals' decision to dismiss appellant's appeal, which that court did after it found that there was

Page 100

an absence of a timely, written notice of appeal, and notwithstanding the state of the record that then existed, and after it had denied appellant's motion for extension of time to file written notice of appeal, 1 I find that the majority opinion by Judge McCormick easily demonstrates why, before such a thing as Rules of Appellate Procedure, that govern the appeal of a criminal case, should ever become part of our law, there should always be public hearings, and the best place for this to occur is in the Legislature of this State. The worst place I find where this should occur is in the closed conference rooms of this and the Supreme Court of Texas, in which no members of the public, and only the judges and justices of those Courts are permitted to enter and vote on what rules will be adopted, and how they shall read.

Because of the unique differences that exist between a civil appeal and a criminal appeal, I, for one, believe that there should always be two sets of rules of appellate procedure: one for the civil appeal and one for the criminal appeal.

Contrary to Judge McCormick's statement, also see Judge Clinton's reference in his opinion on page 3 thereof, that what the clerk of the trial court filed in this cause, which was entitled "NOTICE OF APPEAL", see Appendix "A", attached to this opinion, also see Appendix "B", also attached to this opinion, which is entitled "Pauper's Oath On Appeal", "was not an independent written notice of appeal as required by Tex.R.App.Pro. 40(b)(1)," (Page 1 of slip opinion), that rule does not mandate that "independent written notice of appeal" must be filed by either the defendant or his attorney. Of course, had those who voted for the rules wanted this to be the case, they would have undoubtedly put that requirement in the rule. There is simply nothing in the rule...

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