IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. 0956-01 and 0957-01

RONALD JOHNSON & ANNIE WASHINGTON, Appellants

ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

Johnson, J., filed a dissenting opinion in which Holcomb, J. joined.

O P I N I O N

I respectfully dissent. The record here shows an intent to appeal a pretrial motion and the trial court's knowledge of that intent; the record contains no indication that, with that knowledge, the trial court denied permission to appeal. The record shows substantial compliance with the requirements of Texas Rule of Appellate Procedure 25.2(b)(1). If the record indicates that the appellant has substantially complied with the rules, justice is ill-served when we demand that the factors which comprise "substantial compliance" be written on a particular piece of paper.

The current rule rewards liars. Nothing prevents an appellant from claiming a non-existent jurisdictional defect or a non-existent pretrial motion. Even if the trial court specifically denied permission to appeal, an appellant can falsely assert permission in the notice to appeal. In each of those situations, the court of appeals will examine the record to consider the merits. At that point, the lie may be discovered, but the court of appeals has still had to examine the record.

On the other hand, an appellant with a meritorious claim who is honest and does not falsely claim a Rule 25.2(b)(3) ground for appeal will have the appeal immediately dismissed for lack of jurisdiction. Likewise, the appeal of an appellant who, in fact, qualifies to appeal under Rule 25.2(b)(3), but whose notice fails to state the appropriate ground, will be immediately dismissed. In these circumstances, meritorious appeals will be summarily denied without consideration of the merits. The court of appeals may be spared examining the record on direct appeal, but a direct appeal denied returns as a writ of habeas corpus, and the record must still be reviewed. Instead of conserving judicial resources, the courts must expend those limited resources by processing two appeals rather than one.

I submit that a better use of those resources is to return to a general notice of appeal for all direct appeals. I would return the requirements of notice of appeal to its original state, a bare assertion that appeal is desired.

Johnson, J.

En banc

Filed: September 11, 2002

Publish