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920 S.W.2d 675

White v. State

Texas Court of Appeals, 1st District (Houston) · decided 1996-02-01

Cited by 3 later decisions — most recently April 2001

3 state decisions

Key passage — most relied on by later courts

“But if the appeal is from a judgment rendered on the defendant’s plea of guilty or nolo contendere under the Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice [of appeal] must: (A) specify that the appeal is for a jurisdictional defect; (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.”

quoted by 1 later decision, including Robinson v. State

Relies on Lyon v. State · Davis v. State · Diaz v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1996-02-01

View the full empirical analysis of this case →

¶1OPINION

OLIVER-PARROTT, Chief Justice.

¶2Appellant 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 adverse ruling at a motion to suppress hearing, appellant pled guilty to possession of a controlled substance. The judge assessed punishment at ten-years confinement pursuant to a plea bargain.

¶3Appellant filed a “general” notice of appeal in which he complains of the trial 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 Tex.R.App.P. 40(b)(1), which states in relevant part:

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 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 nonjurisdietional 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 speeify that those matters were raised by written motion and ruled on before trial[.] ...

¶4Tex.R.App.P. 40(b)(1).

¶5In the instant case, the judgment was rendered on appellant’s plea of guilty and the punishment 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 permission 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.).

¶6The 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-pealable matter, a written motion that was ruled on before trial. Tex.R.App.P. 40(b)(1). The notice of appeal has but one purpose' — -to limit an appellant’s right to appeal. Clearly, it makes no sense to render the “death penalty” sanction on appeal for an appellant’s failure to do a useless act. Moreno, 866 S.W.2d at 664 (Cohen, J., dissenting).

¶7We 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 Tex.R.App.P. 83.

¶8We dismiss the appeal.

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