Ashorn, Edmond Hermon v. State ( 2002 )

  Opinion issued May 2, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00904-CR

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EDMOND HERMON ASHORN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 37,053

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DISSENTING OPINION

I dissent.

The record shows that appellant complied with Rule 25.2 by filing a timely notice of appeal. See Tex. R. App. P. 25.2. Accordingly, we have jurisdiction of this appeal.

The Law

Rule 25.2(a) and (b) reads, in relevant part:

(a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal. . . .

(b) Form and Sufficiency of Notice.

(1) Notice must be given in writing and filed with the trial court clerk.

(2) Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order, . . . .

Tex. R. App. P. 25.2(a)-(b)(2) (emphasis added).

In Miles v. State, the Texas Court of Criminal Appeals specifically stated that a written appeal bond filed with the trial court is "sufficient to constitute a notice of appeal" under the Rules. 842 S.W.2d 278, 279 n.1 (Tex. Crim. App. 1989).

The Facts

After a jury trial, appellant was sentenced on August 6, 2001. ⁽¹⁾ On the same day, appellant gave oral notice of appeal, the sum of $6,000 was paid to the Brazoria County Sheriff's Department on appellant's behalf, and appellant signed a bail bond document with "Appeals Bond" hand-printed in bold letters at the top. The appeal bond is file-stamped showing it was filed with the district clerk of Brazoria County on August 16, 2001, well before the September 5, 2001 deadline for filing notice of appeal.

CONCLUSION

As a matter of law, when a party timely files a written document with the trial court clerk that shows the party's desire to appeal a criminal judgment entered after a trial on a plea of not guilty, the appeal is duly perfected. ⁽²⁾ Tex. R. App. P. 25.2(a), (b). The appeal bond filed in this case duly perfected the appeal of the judgment. See Miles, 842 S.W.2d at 279 n.1. Accordingly, we should grant appellant's motion for rehearing, withdraw our opinion and judgment dated October 25, 2001 that dismissed appellant's appeal for lack of jurisdiction, and reinstate the appeal on our docket.

Margaret Garner Mirabal

Justice

Panel consists of Justices Mirabal, Nuchia, and Price. ⁽³⁾

Publish. Tex. R. App. P. 47.

1.

This case does not involve the requirements of a notice of appeal filed after a judgment is entered on a plea of guilty pursuant to a plea bargain. Appellant pled not guilty and the case was tried to a jury.

2.

Respectfully, in footnote 4 the majority opinion misstates the effect of the law. It is not true that "no written notice of appeal need be filed in a case in which an appeal bond is filed before the deadline for filing notice of appeal." For example, in a plea-bargained felony case, when a judgment is rendered on a plea of guilty or nolo contendere in accordance with the plea agreement, a notice of appeal complying with Rule 25.2 (b) (3) must be filed to confer jurisdiction on the appellate court; an appeal bond alone would not perfect the appeal in such a case. I stress again that this is not a plea bargain case. Judgment was entered after a jury trial. Appellant orally told the trial judge he wanted to appeal, he followed through immediately with the filing of an "appeal bond," and he proceeded with the appeal represented by appellate counsel. Rule 25.2 (b)(2) controls, and we have jurisdiction.

3.

The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.