NO. 956-01 & 957-01






Cochran, J., filed a dissenting opinion in which Price, J., joined.


I respectfully dissent. I would address once again whether a plea-bargaining defendant who files a general notice of appeal may nonetheless invoke the appellate court's jurisdiction to review an adverse ruling on his pre-trial motion. In the present cases, the appellants' written notices of appeal did not explicitly state that they were appealing a pre-trial motion, but the Fourteenth Court of Appeals concluded, based upon its examination of the record, that the appellants had substantially complied with the "extra notice" requirements of Rule 25.2(b)(3) of the Rules of Appellate Procedure. (1) Under that rule, a simple statement such as, "The defendant files notice of appeal," invokes the appellate court's jurisdiction if the defendant is convicted after a trial. However, if a defendant pleads guilty pursuant to a plea bargain, Rule 25.2(b)(3) requires a defendant to include an "extra notice" in his notice of appeal, namely an explicit statement that he is appealing a pre-trial motion. The question before this Court is whether the extra notice provision of Rule 25.2(b)(3) is itself jurisdictional and therefore requires strict compliance, or whether it is a procedural housekeeping rule that is a prerequisite to invoke the jurisdiction of the appellate court for which substantial compliance may suffice.

In Riley v. State, (2) we recognized that substantial compliance with Rule 25.2(b)(3), rather than strict compliance, was sufficient to invoke the appellate court's jurisdiction. In the present cases, the State asks us to revisit and reject Riley in favor of a strict compliance rule. (3) I would conclude, however, that the Legislature has decreed that appellate court jurisdiction is based upon whether a plea-bargaining defendant is appealing an adverse ruling on a pretrial motion and not whether his notice of appeal explicitly states that he is doing so. Rule 25.2(b)(3) is a procedural housekeeping rule that this Court promulgated. It is not itself a jurisdictional necessity, but rather the mechanism- the key to the door-by which existing appellate jurisdiction is invoked. I would conclude that because the Fourteenth Court of Appeals did not err in concluding that appellants substantially complied with the rule, we should affirm its holdings in these cases. Johnson v. State, 47 S.W.3d 701 (Tex. App. - Houston [14th Dist.] 2001); Washington v. State, No. 14-99-00007-CR (Tex. App. - Houston [14th Dist.] 2001).


In these two cases, the State charged appellants with felony possession with intent to deliver a controlled substance, namely cocaine, weighing at least 400 grams. (4) Each appellant filed identical pretrial motions to suppress evidence. After conducting a hearing, the trial judge denied those motions, and both appellants then pleaded guilty with a plea bargain agreement. The trial judge sentenced each appellant to twenty-five years in prison and a $1,000 fine. Their attorney completed and signed a pre-printed notice of appeal provided by the court. This form, entitled "Written Notice of Appeal," simply stated that each defendant, on November, 16, 1998:

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).

There is no space on this preprinted form in which to provide additional information. (5)

The clerk's thirty-nine page record was filed with the court of appeals on January 15, 1999. On the front cover of this record, nicely centered, typed in capital letters, and highlighted in yellow, is the phrase: "MOTION TO SUPPRESS ONLY." (6) On page thirty of this record appears a copy of the second page of the judgment and sentence. A pre-printed line on the left hand side of page thirty has a space marked "Notice of Appeal," in which the handwritten words, "11-16-98 'Mtn to Suppress,'" appear. The last entry on the docket sheet reads: "Nov. 16 1998 Defendant gave written notice of appeal as to motion to suppress only. Attorney of record on appeal is George Jacobs." (underlining in original).

The court of appeals concluded that "the judgment notation and the docket entry constitute compliance sufficient to confer jurisdiction upon this court" under Rule 25.2(b)(3) and it therefore addressed the merits of the appeal. Johnson, 47 S.W.3d at 704. The court of appeals reversed the denial of the motion to suppress and remanded the case to the trial court. Id. We granted the State Prosecuting Attorney's petition for discretionary review to decide whether to overrule the "substantial compliance" rule set out in Riley.


The "extra notice" provision in Rule 25.2(b)(3) requires an explicit statement on the face of the written notice of appeal that a plea-bargaining defendant appeals: 1) a jurisdictional defect, 2) an adverse ruling from a written pretrial motion, or 3) with permission of the trial court. The issue is whether this extra notice provision is itself a jurisdictional requirement, which requires strict compliance, or whether it is a procedural prerequisite for which substantial compliance may suffice.

Since 1986 this Court has frequently addressed whether or not a plea-bargaining defendant invokes a court of appeals' jurisdiction if his written notice of appeal does not expressly state the jurisdictional basis for his appeal- i.e., that he is appealing a jurisdictional defect, with permission of the trial court, or the ruling on a written pretrial motion. Some of our cases have said that jurisdiction (or at least cognizability of claims) depends upon the form of the written notice, (7) while some have said it does not. (8) We engendered great confusion within our own Court and within the courts of appeals as a consequence. As Presiding Judge McCormick commented with remarkable understatement: "Our caselaw on how a defendant, in an appeal from a plea-bargained conviction, confers jurisdiction on a Court of Appeals to address certain issues is not exactly a model of clarity and concise legal analysis." (9) He's right.

This Court's difficulty with the issue arises in part from the statutory nature of a criminal defendant's right to appeal. To resolve the present issue, we should examine the origin and evolution of Rule 25.2(b)(3) in the context of a criminal defendant's right to appeal.

In Texas, a defendant's right to appeal is solely statutory; its nature and scope is wholly within the Legislature's control. (10) There is no federal constitutional right to a direct appeal of a state criminal conviction, (11) nor does the Texas Constitution directly grant a defendant a right to appeal a criminal conviction. (12)

Until 1977, a criminal defendant had a very broad statutory right of appeal under article 44.02 and its forerunners, regardless of his plea. (13) Neither a trial judge nor this Court had statutory authority to restrict the defendant's right to appeal his conviction. (14) Under what became known as the Helms rule, however, this Court judicially curtailed review of claims brought by plea-bargaining defendants, holding that a guilty plea waived all nonjurisdictional defects in the trial court. (15) Thus, a plea-bargaining defendant could not appeal unless he raised a jurisdictional issue that made his conviction "void."

In 1977, the Texas Legislature amended article 44.02 to read:

A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. (16)

This Court interpreted the legislative amendment both to statutorily limit the Helms rule regarding some negotiated pleas and to re-affirm the right of a plea-bargaining defendant's right to appeal certain matters. (17) The amendment's central purpose was to conserve judicial resources by allowing appellate courts to address some legal issues on their merits in negotiated plea situations. Amended article 44.02 avoided the necessity of holding a full trial simply to enable a defendant to preserve a viable legal issue for appeal. (18) The law fairly balanced an admittedly guilty defendant's interest in seeking appellate review of a discrete legal issue against the societal and judicial cost of requiring a full trial with a foregone conclusion, simply to preserve that discrete legal issue for appellate review. (19)

The amendment's practical effect was to statutorily limit the appellate courts' jurisdiction. (20) Under amended article 44.02, a plea-bargaining defendant had no right to appeal unless: 1) the trial judge gave him permission; or 2) he appealed a ruling on a written pre-trial motion. (21) The Legislature had constitutional authority to statutorily limit appellate jurisdiction and it did so when it amended article 44.02.

That 1977 amendment, however, said nothing about what a defendant's notice of appeal must contain. Traditionally, an appellate court's jurisdiction is invoked whenever a criminal defendant gives timely notice of appeal. (22) The amendment to article 44.02 did not change that rule in any way. Under article 44.02, the record had to reflect that the defendant met the jurisdictional prerequisites before an appellate court could address the merits of his claims. (23) Further, article 44.02 did not prescribe that a defendant's notice of appeal must contain any specific language. Simply giving notice of appeal invoked and perfected appeal. (24)

In 1985, the Legislature granted this Court limited authority to promulgate rules of evidence and rules of appellate procedure. (25) The Legislature expressly provided, however, that this Court could not promulgate any rules that would "abridge, enlarge or modify the substantive rights of a litigant." (26) A defendant's statutory right to invoke the jurisdiction of a court is just such a substantive right, although the Legislature may choose to limit it. (27) Thus, our rules of appellate procedure may only regulate the manner and mode of pursuing an appeal; they may not create, destroy, or limit the substantive right of appeal. (28)

Pursuant to that limited rule-making authority, in 1986 this Court joined the Texas Supreme Court to promulgate the Texas Rules of Appellate Procedure. (29) One of those new rules was Rule 40(b)(1), which stated:

[I]f the judgment was rendered upon [a] plea of guilty or nolo contendere ..., 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.... (emphasis added).

This rule of appellate procedure neither created nor destroyed legislatively-determined jurisdiction. It did, however, act as a procedural "extra notice" requirement and as a prerequisite to appellate court consideration of the merits of a plea-bargaining defendant's otherwise proper appeal. This distinction might seem picayune, but in fact it is critical. Jurisdiction either exists or it does not. There is no such legal concept as "a little bit" of jurisdiction or "substantial compliance" with jurisdiction. It is strictly necessary and strictly construed. On the other hand, a procedural rule which regulates the manner in which a court's existing jurisdiction is invoked may be either strictly applied or applied more liberally to achieve the purposes sought by that rule. Depending upon the particular rule and specific occasion, courts may require either "strict compliance" or "substantial compliance" with such procedural requiements.

The "extra notice" requirement in former Rule 40(b)(1) (now 25.2(b)(3)) may be an appropriate procedural prerequisite. (30) This Court has never explained a rationale for requiring strict compliance in the notice of appeal, and indeed I cannot discern one today. (31)

D. This Court's Promulgation of Rule 25.2(b)(3).

In 1997, this Court again joined the Texas Supreme Court in promulgating the revised Texas Rules of Appellate Procedure. Former Rule 40(b)(1) became the current Rule 25.2(b)(3), and although Rule 25.2(b)(3)'s wording differs slightly from that in former Rule 40(b)(1), its substance is the same. It reads:

(3) But if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under 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 must:

Unlike the corresponding civil rule, Rule 25.1(b) which explicitly states that the filing of a written notice of appeal invests the appellate court with jurisdiction, (32) the criminal rule is silent on the matter of jurisdiction. However, one need only refer to the 1977 legislative amendments to article 44.02 to see that the form of the written notice of appeal does not itself create or defeat jurisdiction in a plea-bargained case.

Perhaps recognizing that the Rule 40(b)(1) "extra notice" requirement was not itself a jurisdictional requirement, but rather a procedural means to invoke appellate jurisdiction, this Court decided, in Riley v. State, (33) that "substantial compliance" with the notice of appeal rule sufficed. Under Riley, if the court of appeals could easily discern from the record that a plea-bargaining defendant met the jurisdictional prerequisites, then a general notice of appeal would substantially comply with the requirements of Rule 40(b)(1) (now Rule 25.2(b)(3)). (34)

Nevertheless, this Court's decision in Riley has not ended the debate. The courts of appeals continue to grapple with two issues concerning the "extra notice" requirement. First, was Riley's "substantial compliance" rule overturned sub silentio by several recent decisions from this Court, including Cooper v. State (35) and State v. Riewe? (36) Second, if this Court has not overturned Riley, what constitutes "substantial" compliance? (37)

First, in contrast to the State's assertion, both Cooper and Riewe are consistent with the conclusion that the "extra notice" requirements of Rule 25.2(b)(3) are not themselves jurisdictional. In Cooper, for example, this Court held that a plea-bargaining defendant may not appeal the voluntariness of his plea because "such an appeal was forbidden by an act of the legislature in 1977, and that our rules do not, and may not, allow such an appeal." (38) In other words, the same amendment that explicitly conferred appellate court jurisdiction over an appeal by a plea-bargaining defendant who either has the trial court's permission or is appealing an adverse ruling on a pretrial motion, denied, by implication, jurisdiction over that defendant's claim of an involuntary plea. Because the Legislature did not add a third basis for appeal- i.e., the voluntariness of the plea- the appellate court cannot enlarge its jurisdiction to address that claim. The present situation is precisely the reverse: the Legislature did expressly confer jurisdiction on Texas appellate courts to address the merits of a plea-bargaining defendant's appeal of an adverse ruling on a pretrial motion. Just as this Court's rules of appellate procedure could not enlarge jurisdiction in Cooper, they cannot limit jurisdiction in these cases. Cooper dealt solely with the question of whether appellate jurisdiction exists to consider the voluntariness of a plea-bargain, not whether the existing jurisdiction was properly invoked by an adequate notice of appeal.

In Riewe, this Court held that, in an appeal by the State, the certification requirement of article 44.01 is a jurisdictional prerequisite and thus must appear within the notice of appeal itself. (39) The Court reasoned that the Legislature, by statutorily enacting the certification requirement, intended that it serve as a jurisdictional prerequisite, and thus appellate courts could not use "an appellate rule to create jurisdiction where none exists." (40) Under Riewe, if the contents of the notice of appeal are set in a Legislative statute as a jurisdictional prerequisite, then those requirements must be met before appellate jurisdiction exists.

These cases re-emphasize the point that this Court cannot use rules of appellate procedure to either enlarge or limit statutorily conferred jurisdiction. Because the Legislature expressly granted appellate jurisdiction over the appeals of plea-bargaining defendants who either had the permission of the trial court or who appealed a pretrial motion, our rules of appellate procedure cannot limit that jurisdiction. Thus our "extra notice" requirement in Rule 25.2(b)(3) could not and did not limit the statutory jurisdiction of appellate courts, although that rule certainly may regulate the mode and method of invoking pre-existing appellate jurisdiction.

More recently still, we have, on at least two occasions, built upon our previous rulings and held that the failure to comply with the extra-notice requirements of Rule 25.2(b) "fails to invoke the jurisdiction of the appellate court." (41) This court was virtually unanimous in those cases and in following our prior holdings. Unfortunately, we followed those prior holdings without examining afresh the Legislature's 1977 statutory amendment to art. 44.02. It might have been more precise to state that the defective notices of appeal failed to invoke the pre-existing jurisdiction of the courts of appeal. By analogy, the house of jurisdiction was available for those appellants' use, but they did not use the required key to open the door. More importantly, those cases did not involve any question of substantial compliance with Rule 25.2(b)(3). Thus, though those cases were correctly decided, they should not be dispositive of the present issue: When and to what extent does substantial compliance with a procedural prerequisite invoke the appellate court's pre-existing jurisdiction? By analogy, does the key to open the door of appellate jurisdiction have to be a perfect fit or will a skeleton key suffice? This Court, in Riley, held that the door may be opened with an imperfect key. Today we should reaffirm that rule.

The second issue facing litigants and appellate courts is the definition of "substantial compliance" under Riley. I conclude that the cases decided under former article 44.02 provide an appropriate guidance. Those cases held that our appellate courts have jurisdiction to address the merits of a plea-bargaining defendant's appeal if the trial court record clearly demonstrates that the requirements of the provision have been met. (42) Thus, I would hold that a general notice of appeal, coupled with clear record 1) evidence, 2) rulings, 3) orders, or 4) notations that the plea-bargaining defendant is appealing a written pretrial motion, constitutes substantial compliance with Rule 25.2(b)(3). (43)

The State argues that "the saving of judicial time and energy is alone enough reason to disavow 'substantial compliance.'" I cannot agree. Strict compliance with Rule 25.2(b)(3) would actually waste time and effort. (44) This rule has served primarily as a speedy mechanism to dismiss a plea-bargaining defendant's appeal without considering its merits. (45) But what we speedily dismiss today returns tomorrow as a writ of habeas corpus, alleging an involuntary plea or ineffective assistance of counsel. (46) Clearly, an overly rigid enforcement of our procedural rule is neither efficient nor fair, nor is it necessary under either Riley or Rule 25.2(d).

Therefore, I would re-affirm Riley and hold that substantial compliance with the extra notice requirements of Rule 25.2(b)(3) suffices to permit the courts of appeals to address the merits of a plea-bargaining defendant's appeal. If a court of appeals finds that the record clearly shows that the plea-bargaining defendant either had the trial court's permission to appeal or is appealing an adverse ruling on a pretrial motion, that court's pre-existing jurisdiction has been invoked and it should be able to address the merits of the appeal even if the defendant files only a general notice of appeal. Therefore, I would affirm the Fourteenth Court of Appeals and return these cases to the trial court for further proceedings. . I respectfully dissent because this Court declines to do so.

Cochran, J.

Filed: September 11, 2002


1. Unless otherwise indicated, all future references to "Rules" refer to the Texas Rules of Appellate Procedure.

2. 825 S.W.2d 699 (Tex. Crim. App. 1992).

3. We granted the State Prosecuting Attorney's Petition for Discretionary Review to address the following questions: