Trial Judge's Order Limiting Defendant's Appeal
In Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992), Riley's written notice of appeal stating only she wished to appeal, she was indigent and desired an appointment of appellate counsel. See id. at 701. the notice did not contain a statement, as required by former Appellate Rule 40(b)(1), that the trial court granted permission to appeal or that the matters appealed were raised by written motion and ruled on before trial.
Included in the record was an order, signed by the trial judge, entitled, "Order Limiting Defendant's Appeal." This order stated Riley's punishment was assessed pursuant to a plea bargain, the trial court allowed an appeal pursuant to Article 44.02, Code of Criminal Procedure, and a motion to suppress was raised before trial. See id.
Although Riley's notice did not satisfy Appellate Rule 40(b)(1), the Court of Criminal Appeals found "the existence of the order, timely filed in the appellate record, is sufficient" to give the court of appeals jurisdiction over nonjurisdictional defects. Id.
The Court stated:
We hold that, under the facts of this case, when all the information required by Rule 40(b)(1) is contained in an order by the trial court and the order is in the appellate record along with a timely filed notice of appeal, the Court of Appeals has jurisdiction to address jurisdictional and also those non-jurisdictional defects recited in the order.
Appellant's notice of appeal coupled with the court's order substantially complied with Rule 40(b)(1) to permit review of properly preserved non-jurisdictional issues. Riley, 825 S.W.2d at 701.
Former Appellate Rule 40(b)(1) states, in pertinent part:
Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendere 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 non-jurisdictional 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.