Davis v. State , 870 S.W.2d 43 ( 1994 )

OPINION ON APPELLANT’S AND STATE’S PETITIONS FOB DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant pled nolo contendere to the charge of aggravated possession of amphetamine. The trial court accepted appellant’s plea, found her guilty of the offense, and imposed a seven-year sentence recommended by the prosecutor and agreed to by appellant. See Article 1.15, V.A.C.C.P. Pursuant to Tex.R.App.Pro. 40(b)(1), appellant filed a “general” notice of appeal from her conviction.¹

The Court of Appeals addressed, among other things, these issues: (1) whether the trial court erroneously denied appellant’s pretrial motion to suppress the evidence, and (2) whether the evidence was sufficient to support her conviction. Davis v. State, 773 S.W.2d 404 (Tex.App.—Fort Worth 1989). The Court of Appeals held appellant waived the issue of whether the trial court erroneously denied appellant’s suppression motion, because her “general” notice of appeal failed to comply with the “extra-notice” requirements of Rule 40(b)(1). Davis, 773 S.W.2d at 408. Relying on Engelking v. State, 750 S.W.2d 213 (Tex.Cr.App.1988), the Court of Appeals also held the evidence insufficient to support appellant’s conviction. Davis, 773 S.W.2d at 407-08. The State and appellant filed petitions for discretionary review.² We reverse the judgment of the Court of Appeals.

The State claims appellant’s “general” notice of appeal failed to confer jurisdiction on the Court of Appeals to address appellant’s sufficiency of the evidence claim. In relevant part, Rule 40(b)(1) provides:

“[Notice of Appeal] shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appeal-able order; but if the judgment was rendered u-pon his plea of guilty or nolo con-tendere pursuant to Article 1.15, Code of Criminal Procedure, 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 Supplied).

The Court of Appeals held the “but” clause of Rule 40(b)(1) only applies where a defendant appeals nonjurisdictional defects or errors that occurred prior to entry of the plea. Davis, 773 S.W.2d at 406 (emphasis in original). Since sufficiency of the evidence is a nonjurisdictional defect occurring after entry of the plea, the Court of Appeals held the “but” clause of Rule 40(b)(1) does not apply to appellant’s sufficiency claim, and appellant’s “general” notice of appeal was sufficient for the Court of Appeals to review this claim. Davis, 773 S.W.2d at 406 (emphasis supplied).

The State, in effect, claims this interpretation of Rule 40(b)(1) impermissibly gives a defendant a greater scope of appeal than the Legislature intended. We agree.

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.” Article 44.02, V.A.C.C.P., as enacted in 1925; former Article 813, C.C.P. 1925; see generally Lemmons v. State, 818 S.W.2d 58, 59-63 (Tex.Cr.App.1991). In 1977, the Legislature added the following proviso to Article 44.02:³

“_provided, however, before the defendant [who has been convicted based on a negotiated plea and the trial court assesses 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_” (Emphasis Supplied).

By order dated December 18, 1985, this Court repealed the proviso of Article 44.02, and replaced it with Rule 40(b)(1), effective September 1, 1986.⁴ See generally Lem-mons, 818 S.W.2d at 62. In delegating authority to this Court to promulgate a comprehensive body of appellate rules in criminal cases, the Legislature expressly provided that these rules could not abridge, enlarge or modify the substantive rights of a litigant.⁵ See generally Lemmons, 818 S.W.2d at 59-63.

A defendant’s legislatively granted right of appeal is a substantive right. See Lemmons, 818 S.W.2d at 62; Morris v. State, 749 S.W.2d 772, 774 (Tex.Cr.App.1986). In Morris, the defendant’s notice of appeal limited his appeal to the trial court’s adverse ruling on his pretrial motion to quash the indictment; however, the only issue the defendant raised on appeal was the sufficiency of the evidence “to support the plea of guilty (sic).” Morris, 749 S.W.2d at 773. We held the defendant had no right to appeal the sufficiency of the evidence to support a plea-bargained conviction under the proviso to Article 44.02 unless the defendant obtained the trial court’s permission or raised the issue by written motion filed prior to trial, which he failed to do; therefore, the Court of Appeals lacked jurisdiction over the appeal. See Morris, 749 S.W.2d at 774-75. In promulgating Rule 40(b)(1), this Court acted on the assumption “that the body of caselaw construing the proviso [to Article 44.02] would prevail and still control.” Lemmons, 818 S.W.2d at 62. Therefore, we hold appellant’s “general” notice of appeal under Rule 40(b)(1) failed to confer jurisdiction on the Court of Appeals to review appellant’s sufficiency claim. See Morris, 749 S.W.2d at 774-75.

A plain reading of Rule 40(b)(1) supports this holding, and does not enlarge a defendant’s substantive right of appeal. The relevant portions of Rule 40(b)(1) should be read as follows:

“_in order to prosecute an appeal for a (1) nonjurisdictional defect [occurring before or after the plea], or (2) 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....”

Reading the phrase “that occurred prior to entry of the plea” as modifying only “error” makes Rule 40(b)(1) consistent with Morris. See Lemmons, 818 S.W.2d at 62 (prior case-law construing the proviso of Article 44.02 prevails and still controls). Moreover, reading Rule 40(b)(1) this way also makes it consistent with the admonishment in Article 26.13(a)(3), V.A.C.C.P.,⁶ that a trial court is required to give a defendant prior to accepting a guilty or nolo contendere plea.

We sustain the State’s first and second grounds for review. We find it unnecessary to address the State’s third and fourth grounds for review.

Appellant claims the Court of Appeals erred in failing to address the trial court’s ruling on her pretrial suppression motion. The statement of facts from the plea proceeding reflects appellant pled nolo contende-re with the understanding, and the trial court’s permission, that she would be able to appeal the trial court’s ruling on her suppression motion. However, appellant filed only a “general” notice of appeal.

A “general” notice of appeal is insufficient to confer jurisdiction on a Court of Appeals to review a trial court’s ruling on a pretrial suppression motion in an appeal from a conviction based on a negotiated plea bargain. See Jones v. State, 796 S.W.2d 183 (Tex.Cr.App.1990); Morris, 749 S.W.2d at 774-75. Moreover, this record contains no “Order Limiting Defendant’s Appeal” reciting the extra-notice requirements of Rule 40(b)(1), or any other document which combined with appellant’s notice of appeal substantially complies with Rule 40(b)(1), that would confer jurisdiction on the Court of Appeals to address appellant’s suppression issue. See Riley v. State, 825 S.W.2d 699, 700-01 (Tex.Cr.App.1992). We overrule appellant’s first ground for review.

Appellant also claims the Court of Appeals erred in refusing to permit her to file an amended notice of appeal after the Court of Appeals had handed down its opinion. A defendant may not be permitted to amend a notice of appeal out of time. See Jones, 796 S.W.2d at 187. We overrule appellant’s second ground for review.

Finally, appellant raises the following issues: (1) whether the failure of her trial counsel to file a legally sufficient notice of appeal was ineffective assistance of counsel which denied her a meaningful right of appellate review, and (2) whether her plea was involuntary since it was contingent upon her being able to appeal the motion to suppress issue. While we granted appellant’s petition on these issues, we now note that appellant did not raise and argue either of these issues in her brief in the Court of Appeals, and that court consequently did not address them. We previously have held that this Court cannot review issues which have not first been properly presented to and ruled on by the Court of Appeals. See Ward v. State, 829 S.W.2d 787, 795-96 (Tex.Cr.App.1992); Tallant v. State, 742 S.W.2d 292, 294 (Tex.Cr.App.1987).⁷ Based on these authorities, we will not address appellant’s third and fourth grounds for review, and we dismiss those grounds as improvidently granted.⁸

We hold appellant’s “general” notice of appeal failed to confer jurisdiction on the Court of Appeals to address the trial court’s ruling on appellant’s suppression motion, and the sufficiency of the evidence to support her conviction. Since appellant raised no jurisdictional issues in the Court of Appeals, we reverse the judgment of the Court of Appeals and order the appeal dismissed for lack of jurisdiction. See Morris, 749 S.W.2d at 775; Davis, 773 S.W.2d at 406-08.

MEYERS, J., not participating.

1 . Appellant’s notice of appeal stated:

“COMES NOW the Defendant in the above entitled and numbered cause and hereby gives notice to the Court of her intention to appeal the judgment of the Court to the Texas Court of appeals, Second Supreme Judicial District.”

2 .We granted review on the following issues raised by appellant:

1. Whether the Court of Appeals erred in failing to address the motion to suppress issue.

2. Whether the Court of Appeals erred in failing to permit appellant to file an amended notice of appeal after the Court of Appeals’ decision that appellant had failed to preserve the motion to suppress issue for appellate review.

3. Whether appellant’s counsel was ineffective for failing to preserve the motion to suppress issue for appeal.

4. Whether appellant’s plea was involuntary due to the Court of Appeals’ decision that it could not address the motion to suppress issue.

We also granted review on the following issues raised by the State:

1. Whether Rule 40(b)(1) permits an appeal on the sufficiency of the evidence for a negotiated plea of nolo contendere where the issue was not raised prior to trial and the trial court did not grant permission to appeal that issue.

2. If Rule 40(b)(1) does permit such an appeal, whether that rule is void under Section 22.-108(a) of the Texas Government Code.

3. Whether there was sufficient evidence for appellant’s plea.

4. Whether Engelking v. State is applicable to the sufficiency issue in this case.

3 .See Acts 1977, 65th Leg., p. 940, ch. 351, § 1, eff. August 29, 1977.

4 . See Act of August 26, 1985, 69th Leg., ch. 685, §§ 1-4, 1985 Tex.Gen.Laws 2472-2475 (authorizing this Court to promulgate rules of procedure and evidence in criminal cases).

5 . See Act of August 26, 1985, 69th Leg., ch. 685, § 1, 1985 Tex.Gen.Laws 2472. See also Tex. Gov’t Code Ann. § 22.108(a) (Vernon 1988).

6 . Article 26.13(a)(3) requires a trial court to admonish a defendant of:

"the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions prior to trial.” (Emphasis Supplied).

7 . Appellant cites Christal v. State, 692 S.W.2d 656 (Tex.Cr.App.1981), for the proposition that this Court has previously overturned a defendant’s guilty plea where the defendant entered the plea with the mistaken belief that he would be able to appeal a certain legal issue after entry of the plea. It is true that in Christal we overturned a plea in such circumstances, which are substantially identical to the circumstances of this case. Christal, however, is procedurally distinguishable from this case in that the defendant in Christal properly raised the voluntariness issue in a direct appeal to this Court. In this case, appellant raised her voluntariness issue in this Court in a petition for discretionary review after having failed to obtain a ruling on the issue in the Court of Appeals.

8 . The record shows appellant claimed in her motion for rehearing in the Court of Appeals that trial counsel’s failure to file a legally sufficient notice of appeal deprived her of her right to a meaningful appellate review. Appellant concedes in her petition, however, that the Court of Appeals denied that motion without an opinion. This type of ruling by the Court of Appeals is not a ruling we review on a petition for discretionary review. Rochelle v. State, 791 S.W.2d 121, 123-25 (Tex.Cr.App.1990).