NO. 260-02






Womack, J., filed a concurring opinion, in which Holcomb and Cochran, JJ., joined.

I agree with the Court's judgment affirming the judgment of the district court, but for a different, and more basic, reason. I believe that it is a moot question whether the attachment of the "birth certificate" to the notice of appeal was sufficient to "specify that the appeal is for a jurisdictional defect" under former Rule of Appellate Procedure 25.2(b)(3)(A), (1) because such an appeal is not authorized by law.

Recently we decided that we had erred when we held that a defendant in a plea-bargain case could appeal the voluntariness of his plea. (2) The reason was that a legislative enactment in 1977 had limited a defendant's right to appeal in a plea-bargain case to two kinds of cases, and we had no authority to extend the right of appeal to other kinds of cases. "The legislature forbade it in 1977, and to do so would completely frustrate the statute. Our rule-making authority does not extend to enlarging the right of appeal in this fashion." (3)

When we decided that case, we "noticed" that the Rule of Appellate Procedure also "modified the 1977 statute" when it "added a restriction to 'nonjurisdictional' defects or errors." (4) We did not decide the validity of that modification because it was not presented in the appeal that was before us. But the decision about allowing appeals of jurisdictional defects must be the same as the decision we made about allowing appeals of voluntariness: The legislature forbade it in 1977, and to permit it would completely frustrate the statute, which had "the legislative purpose to eliminate meritless appeals." (5) What we said about plea-bargainers' appeals of voluntariness is just as true about this appeal of a jurisdictional defect:

The legislature reasonably determined to eliminate a small number of meritorious appeals to prevent a much larger number of meritless appeals.

This decision may be seen as even more reasonable when it is remembered that meritorious claims of [jurisdictional defects] may be raised by other procedures: motion for new trial and habeas corpus. These procedures are not only adequate to resolve claims of [jurisdictional defects], but they are superior to appeal in that the claim may be supported by information from sources broader than the appellate record. (6)

Here, after receiving a forty-year sentence in adult court, the appellant says that he was a juvenile all along. To prove it, he filed a birth certificate that he says is his. The appellate record is inadequate for a court to decide whether his claim is true. He should seek a writ of habeas corpus, returnable to this court, so that he can try to prove his factual claim.

Therefore I agree that the judgment of the district court should not be disturbed on appeal, but for a reason other than the Court's.

En banc.

Delivered April 30, 2003.



1. "But if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice 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." Tex. R. App. P.25.2(b), 60 Tex. B.J. 878, 899 (Tex. Cr. App. 1997, amended 2003).

2. See Cooper v. State, 45 S.W.3d 77 (Tex. Cr. App. 2001).

3. Id., at 81.

4. Id., at 81 n.11.

5. Id., at 80.

6. Id., at 82.