Texas Rule of Appellate Procedure 40(B)(1) Interpretation

In Moreno v. State, 866 S.W.2d 660, 662 (Tex. App. - Houston [1st Dist.] 1993, no pet.), Justice Cohen mounted the most eloquent attack upon the "extra notice" requirement in Texas Rule of Appellate Procedure 40(b)(1): The requirement of stating in the notice of appeal that the judge granted permission to appeal or listing the motions raised and ruled on before trial has no purpose whatsoever. It is truly a rule without a reason. Its only function is to take away a person's right of appeal. It should be avoided if that can be done in a principled fashion. ... But even if it is avoided in this case, the requirement should still be repealed because it is useless and harmful. Nobody, no court and no party, does anything differently because of what is or is not included in the notice of appeal. Former Rule 40(b)(1), in relevant part, provided that, "in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea,"a defendant's notice of appeal from a plea-bargained conviction "shall state that the trial court granted permission to appeal" or that "those matters [raised on appeal] were raised by written motion and ruled on before trial." Rule 25.2(b)(3), Texas Rules of Appellate Procedure provides that a defendant's notice of appeal from a plea-bargained conviction must (A) "specify that the appeal is for a jurisdictional defect;" or (B) "specify that the substance of the appeal was raised by written motion and ruled on before trial;" or (C) "state that the trial court granted permission to appeal." In Lyon v. State and Davis v. State, the Court held that a defendant's "general" notice of appeal from a plea-bargained conviction did not invoke the jurisdiction of the Court of Appeals to review nonjurisdictional claims under Former Rule 40(b)(1) (now Rule 25.2(b)(3)(B) & (C)). See Lyon v. State, 872 S.W.2d 732, 736 (Tex.Cr.App.), cert. denied, 512 U.S. 1209, 114 S. Ct. 2684, 129 L. Ed. 2d 816 (1994); Davis v. State, 870 S.W.2d 43, 47 (Tex.Cr.App. 1994). In White v. State, we unanimously held, consistent with Lyon and Davis, that a defendant's "general" notice of appeal from a plea-bargained conviction did not invoke the jurisdiction of the Court of Appeals to review jurisdictional claims under Rule 25.2(b)(3)(A). See White v. State, 61 S.W.3d 424, 429 (Tex.Cr.App. 2001). In Riley v. State, we decided that a plea-bargaining defendant's "general" notice of appeal, "coupled with the [trial] court's order" reciting the Rule 40(b)(1) "extra-notice" requirements for such a notice of appeal, "substantially complied with Rule 40(b)(1)" and, therefore, invoked the jurisdiction of the Court of Appeals to review nonjurisdictional claims. See Riley v. State, 825 S.W.2d 699, 700-01 (Tex.Cr.App. 1992).