Moreno v. State

866 S.W.2d 660, 1993 Tex. App. LEXIS 2896, 1993 WL 433878

Opinions

OPINION

HUTSON-DUNN, Justice.

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 conten-dere 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 suppress¹ 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.

OLIVER-PARROTT, C.J., concurs in an opinion in which MIRABAL, WILSON and HEDGES, JJ., join.

DUGGAN, J., concurs.

COHEN, J., dissents.

Footnotes

1

. The motion to suppress constitutes appellant’s grounds for appeal, and "what the grounds of appeal are” is what the rule refers to by the words "those matters.” See Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App.1990).

2

. We are cognizant of Riley v. State, 825 S.W.2d 699 (Tex.Crim.App.1992), where the Court of Criminal Appeals wrote:

We hold that, under the facts of this case, when all the information required by Rule 40(b)(1) is contained in an order by the trial court and the order is in the appellate record along with a timely filed notice of appeal, the Court of Appeals has jurisdiction to address ... non-jurisdictional defects recited in the order.

Appellant's notice of appeal coupled with the court's order substantially complied with Rule 40(b)(1) to permit review of properly preserved non-jurisdictional issues. The Court of Appeals did not err in reviewing the trial court's denial of appellant’s pre-trial motion to suppress.

Id. at 701. The order to which the court referred was entitled "Order Limiting Defendant's Appeal,” and recited that "the trial court allowed appeal pursuant to Article 44.02, V.A.C.C.P., and that a motion to suppress challenging the legality of the arrest and subsequent search was raised before trial.” Id.

As in Moshay, 828 S.W.2d at 179, there is no such order, or anything equivalent to it, here. Thus, unlike in Riley, but like in Moshay, there is nothing in the record that performs the function of a notice of appeal. The Moshay court found Riley distinguishable and inapplicable on this ground. Id. We agree, and thus find Riley distinguishable and inapplicable here, as well.