Miles v. State , 1989 Tex. App. LEXIS 1988 ( 1989 )

BOYD, Justice,

concurring.

I join Justice Dodson in his conclusion that our initial opinion overruling appellant’s motion for extension of time to file a written notice of appeal must be withdrawn. I also agree with his conclusion that we must grant appellant’s motion for extension of time to file his notice of appeal with directions. Because of the importance of the question presented, however, I write to explain my reasoning in arriving at those conclusions.

The history of this case is set out in Justice Dodson’s opinion. While no notice of appeal was filed in the trial court within the time limit of Tex.R.App.P. 41(b)(1),¹ a written motion for extension of time was filed in this Court within the time period prescribed by Rule 41(b)(2). Therefore, this case does not present a situation were there was a complete failure to comply with the rules.

In reaching the conclusion that the failure to timely file the notice of appeal deprives this Court of jurisdiction to entertain this appeal, the dissent relies upon Shute v. State, 744 S.W.2d 96 (Tex.Crim.App.1988). With all due respect, I do not agree that Shute mandates that conclusion. In Shute, there was a complete failure to comply with any requirement of Rule 41. Indeed, the court specifically commented that “[n]o timely motion for extension of. time to file the notice of appeal was filed.” 744 S.W.2d at 97. In my view, the difference between Shute and the instant case is significant. In this case, the partial failure to comply with the rule is a procedural rather than a jurisdictional matter. It is for that reason that the application of Rule 83 in this case is especially appropriate. This is not a case where no effort has been made to comply with the prescribed rules governing appeals. Rather, it is one where effort has been made to follow the prescribed procedure, although a mistake was made in interpretation and application of that procedure. The effect of the application of Rule 83 in this case is not to grant an out-of-time appeal, but is simply to permit the orderly and proper completion of an appeal duly invoked.

Moreover, Rule 2(b), with the admonition that it may not be used to suspend the requirements or provisions of the Code of Criminal Procedure, authorizes this Court “in the interest of expediting a decision or for other good cause shown” to suspend the requirements and provisions of any rule. Whatever else might be said about Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the Supreme Court has clearly stated that it will not permit the failure to follow procedural technicalities to prevent the appellate review of a criminal case. In my view, the failure to grant appellant’s motion would only operate to delay appellant’s inevitable right to have his conviction reviewed by an appellate court. Indeed, the groundwork for that result has already been laid by appellant’s contention that a refusal to grant his motion would render the assistance of his counsel on appeal ineffective. That ineffective assistance was the sine qua non of Evitts, and necessitates the grant of appellate review to a criminal defendant. In this context, the exercise of our authority under Rule 2 is certainly justified.

Our action in granting this motion is not without precedent. In Boulos v. State, 775 S.W.2d 8 (Tex.App.—Houston [1st Dist.], n.p.h.), the appellant also failed to meet the dual requirements of Rule 41(b)(2). The notice of appeal was filed within the requisite fifteen-day period, but the motion for extension of time was not. The State contended that the partial failure deprived the court of appeals of jurisdiction to consider the appeal. The court overruled that contention and invoked Rules 2 and 83 to grant the extension of time. En route to its decision, the court commented that it was exercising its authority “to preserve appellant’s constitutional right to effective assistance of counsel and to avoid post-conviction relief claims.” Boulos, 775 S.W.2d at 9. The question presented in Boulos is similar to that presented here, and the court’s reasoning is analogous and applicable.

In Massey v. State, 759 S.W.2d 18 (Tex.App.—Texarkana 1988, no pet.), the appellant completely failed to file any written notice of appeal as required by Rule 41(b)(1), although he had given oral notice of appeal.² The court noted that the appellant had filed a written request for a copy of the record and for appointment of an attorney to represent him. Without specific explication of the authority upon which it relied, the court held the language in the request was adequate to demonstrate the desire of the appellant to appeal and was, therefore, sufficient to serve as the independent written notice of appeal required by Rule 40(b)(1) and was sufficient.

In Jiles v. State, 751 S.W.2d 620 (Tex.App.—Houston [1st Dist.] 1988, pet. refd), the court was presented with a question similar to the one involved here. In that case, the appellant not only failed to give a written notice of appeal, but also failed to file a timely motion for extension of time. Applying Rules 2(b) and 83, the court found other actions of the appellant sufficient to overcome those procedural lapses and permitted appellate review.

En route to its decision, the court commented that Shute v. State, 744 S.W.2d 96, was solely concerned with the question of whether the court of appeals had erred in dismissing that particular appeal for lack of jurisdiction. Shute contained no discussion of whether the court of appeals could have followed any other course of action. In a well-reasoned opinion, the court reviewed the theory of criminal appellate review in Texas and the relationship of our rules of appellate procedure to appellate review. It also considered the impact of Evitts v. Lucey on criminal appellate review. The Jiles Court concluded:

These authorities establish that this Court is not required to close its eyes when a party before it is losing his right to appeal because of ineffective assistance of counsel. Rather, we find that the judicial discretion granted in rules 2 and 83 allows us to protect the vital public interest in appellate review of criminal cases and to avoid delaying appellant’s exercise of that right until some future court grants the relief inevitably required under Evitts v. Lucey.

751 S.W.2d at 622. Significantly, by its refusal to grant discretionary review in Jiles, the Court of Criminal Appeals failed to find such reasoning reversible.

The logic of Jiles is compelling, and its reasoning is applicable in this case. To hold that counsel’s understandable misinterpretation of Rule 41(b)(2) deprived appellant of review of his conviction would directly support a claim of ineffective assistance of counsel with its inevitable consequences. Our application of Rules 2 and 83 permits both correction of the error and an orderly and timely review of appellant’s conviction, and is correct both statutorily and constitutionally. To do so fulfills our duty to effectuate both judicial economy and the expeditious and efficient disposition of criminal appeals so essential to the proper functioning of our criminal justice system.

For these reasons, I join Justice Dodson in granting the motion for rehearing and the motion for extension of time to file written notice of appeal in the trial court, with the requirement that such notice be filed on or before August 7, 1989.

1 . All further references to rules are to the Texas Rules of Appellate Procedure.

2 . Parenthetically, we note that the failure to file a written notice of appeal would likewise be a failure to comply with Rule 41(b)(2).