author: HOLLAND, J., WOMACK, J.,

text:
    Ex parte Samuel Ross McPHERSON, Applicant.
    No. 73,453.
    Court of Criminal Appeals of Texas.
    Dec. 6, 2000.
    Samuel Ross McPherson, Richmond, pro se.
    Michael R. Little, Anahuac, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HOLLAND, J.,

delivered the opinion of the Court in which

MEYERS, MANSFIELD, PRICE, JOHNSON and KEASLER, JJ., join.

Applicant was convicted of sexual assault, and punishment was assessed at twenty years confinement. No appeal was taken from this conviction. Applicant has now filed an application for a writ of habe-as corpus in which he contends his trial counsel was ineffective for failing to file various pretrial motions. We deny the requested relief.

This is Applicant’s second application for writ of habeas corpus. On January 8, 1992, this Court denied the previous application in which Applicant claimed his counsel was ineffective for failing to file notice of appeal. We filed and set this cause to decide whether an initial application seeking an out-of-time appeal constitutes a “challenge to the conviction” under Article 11.07 § 4 of the Texas Code of Criminal Procedure.

Article 11.07 § 4(a) states: “If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction a court may not consider the merits of or grant relief based on the subsequent application unless [an exception applies].” Tex. Code Crim.ProC.Ann. Art. 11.07 § 4. Under an earlier interpretation of this section, the denial of Applicant’s initial application would have constituted “a final disposition of an attack on a ‘conviction,’ ” because it was “an attack on a specific cause number in which all issues which were raised [were] dealt with on the merits.” Ex Parte Rawlinson, 958 S.W.2d 198, 200 (Tex.Crim.App.1997). In Ex parte Evans, however, we explicitly disavowed that language and defined the narrower term “challenge to the conviction.” 964 S.W.2d 648, 646 n. 4 (Tex.Crim.App.1998). “Both the definition of conviction and this Court’s case law regarding writ applications lead us to the conclusion that the procedural bar of § 4 is limited to instances in which the initial application raises claims regarding the validity of the prosecution or the judgment of guilt.” Id. at 647; see also Ex parte Whiteside, 12 S.W.3d 819, 821 (Tex.Crim.App.2000) (noting the Ex parte Evans definition of “challenge to the conviction.”).

In this case, Applicant’s initial application seeking an out-of-time appeal did not directly seek to overturn the conviction. His claim that counsel failed to preserve his right to appeal did not concern the validity of the prosecution or the judgment of guilt. Applicant might have challenged the validity of the prosecution or judgment of guilt in any out-of-time appeal granted him. But the validity of the conviction itself was not called into question by the filing of the initial application, which sought only an opportunity to appeal in the court of appeals.

Because Applicant’s initial application seeking an out-of-time appeal did not pertain to the validity of the prosecution or the judgment of guilt, it was not a challenge to the conviction invoking the procedural bar of Article 11.07 § 4. Therefore, we address the merits of Applicant’s claims in this subsequent application.

Applicant contends that his trial counsel was ineffective because he failed to file various pretrial motions, including a motion in limine, a motion for speedy trial, a motion to quash, and a motion for appointment of an investigator. Applicant does not allege any specific facts showing why these motions were needed in this particular case. Applicant also argues that his counsel failed to object to inadmissible evidence, but again he states only conclusions without any supporting facts. Therefore, Applicant has failed to allege facts which, if true, would entitle him to relief. See Ex parte Maldonado, 688 S.W.2d 114 (Tex.Crim.App.1985). Relief is denied.

WOMACK, J., dissents with opinion joined by KELLER, J. McCORMICK, P.J., dissents without opinion.

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM CHAMBERS COUNTY.

WOMACK, J.,

filed a dissenting opinion in which KELLER, J., joined.

Elsewhere I have expressed my view of the statutory terms that the Court construes today.

After 1995, the procedures of Article 11.07, Sections 3-7, apply only to an application in which the applicant seeks relief from a non-capital felony judgment. See id., Section 1. When Section 1 is kept in mind, most of the perceived difficulty with Section 4 disappears. Section 4 restricts a subsequent application that is filed after “an initial application challenging the same conviction.” If we follow Section 1 and apply those restrictions only to applications that seek relief from a felony judgment, every (or almost every) subsequent application will follow “an initial application challenging the same conviction.”
In other words, Section 1 and Section 4 should be construed in harmony. An initial application should be admitted to the post-conviction procedure only if (under Section 1) it “seeks relief from a felony judgment,” and it will be an application that was “challenging the conviction” in the terms of Section 4. There is no reason to suppose, as the Court does today, that the Legislature wanted to create a class of post-conviction applications under Section 1 that were not subject to the restrictions of Section 4. Such a supposition is not called for by the language of the statute, and it is manifestly contrary to the intent of the Act of June 7, 1995, which was “to limit a convicted person to ‘one bite at the apple’ ” under Article 11.07. Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Cr.App.1997)....
We need not develop further the jurisprudence, which began in Ex parte Evans, 964 S.W.2d 643 (Tex.Cr.App.1998), about subsequent applications that follow initial applications that did not challenge the conviction but were still cognizable under Article 11.07, Section 1. There should not be any such initial applications.

Ex parte Whiteside, 12 S.W.3d 819, 822-23 (Tex.Cr.App.2000) (Womack, J., concurring).

Today’s decision is another development in the Evans jurisprudence, under which the initial post-conviction habeas corpus application under Article 11.07 is said to have “sought relief from a felony judgment,” but not to have “challenged the conviction.” Because I do not understand the statute to permit such an initial application, I would hold that this subsequent application is barred by Section 4 of the article. I would dismiss it.


source: Caselaw Access Project

author: MEYERS, J.,

license: Public Domain

text:
    Michael Joel MORALES, Appellant, v. STATE of Texas.
    No. 83-00.
    Court of Criminal Appeals of Texas.
    Dec. 6, 2000.

      Gary M. Polland, Houston, for appellant. Alan Curry, Asst. Dist. Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

joined by MANSFIELD, KELLER, PRICE, HOLLAND, WOMACK, JOHNSON and KEASLER, JJ.

Appellant was convicted by a jury of the felony offense of driving while intoxicated and sentenced to thirty-five years confinement. The First Court of Appeals reversed and remanded the trial court’s judgment in an unpublished opinion. Morales v. State, No. 01-99-00457-CR slip op. at 5 (Tex.App.—Houston [1st Dist.] Dec.9, 1999). We granted the State’s petition for discretionary review to decide whether the Court of Appeals erred in holding that the trial judge abused his discretion in excluding expert testimony regarding the burn-off rate of alcohol and whether the lower court conducted a meaningful harm analysis under Rule of Appellate Procedure 44.2(b).

I.

Appellant was charged with the felony offense of driving while intoxicated and tried before a jury. At trial, Officer Neil Joseph Gibbs Depina-Correia, the arresting officer, testified for the State as to appellant’s condition when he was stopped and taken into custody. The State also called Officer Jerald Roberts, who had participated in processing appellant at the police station, to give testimony as to appellant’s condition and behavior when he arrived at the station.

Appellant called Thomas Cromin, the passenger of the vehicle appellant was driving when stopped and subsequently arrested. Cromin testified that appellant had been drinking earlier in the evening. Cromin also specified how many beers he recalled appellant drinking, as well as the time of day the last beer was consumed.

Appellant then offered expert witness testimony by Ronald Tisdell regarding the rate at which alcohol is absorbed, or “burned off’, by the normal processes of the human body. The trial judge excluded the testimony, sustaining the State’s objection that it was not relevant because appellant had not taken a breath test. Appellant perfected a bill of exception of Tisdell’s proposed testimony outside the presence of the jury.

On appeal, appellant argued Tisdell’s testimony regarding the “burn off’ of alcohol was a valid scientific theory tied to a hypothetical that was similar to the facts of the case, and was therefore relevant evidence which should have been presented to the jury. The Court of Appeals agreed, holding that the expert testimony regarding “alcohol burn-off rate was relevant in determining whether appellant was intoxicated at the time he was pulled over.” Morales, slip op. at 5.

Having found that the expert testimony regarding alcohol burn-off rate was relevant, the lower court then addressed the question of harm in a single sentence: “the failure to permit the expert to testify did affect a substantial right of appellant’s— the right to have the jury consider his version of the facts.” Morales, slip. op. at 5. Supported solely by this statement, the Court of Appeals held the error harmful and reversed appellant’s conviction.

II.

The State’s first point of error claims “the court of appeals erred in failing to consider the ‘fit’ requirement for the admissibility of expert testimony.”

Admission of expert testimony is governed by Texas Rule of Evidence 702. When addressing the admissibility of expert testimony, the trial court’s “first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results.” Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). Naturally, testimony which is unreliable or irrelevant would not assist a juror in understanding the evidence or determining a fact in issue, as is required by Rule 702.

Texas Rule of Evidence 401 defines relevant evidence as evidence which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” TEX.R.EVTD. 401. This broad definition lends itself to a liberal policy of admission of evidence for the jury’s consideration.

When the evidence at issue is expert testimony, the trial court must also determine whether the evidence meets the Rule 702 standard and “assist[s] the trier of fact [in] understanding] the evidence or [in] determining] a fact in issue.” When examining the Rule 702 issue, the trial court must determine whether the expert “make[s] an effort to tie pertinent facts of the case to the scientific principles which are the subject of his testimony.” Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App.1996). Restated, the testimony must be “sufficiently tied to the facts to meet the simple requirement that it be ‘helpful’ to the jury.” Id. This is the “fit” requirement, and the basis of the State’s argument.

If a trial judge finds the proposed expert testimony meets both the Rule 401 and Rule 702 requirements, then the judge must perform a Rule 403 analysis to determine whether the evidence should, in fact, be presented to the jury. Kelly, 824 S.W.2d at 573. An appellate court should not disturb the trial court’s decision to admit or exclude scientific evidence absent an abuse of discretion. Hi nojosa v. State, 4 S.W.3d 240, 251 (Tex.Crim.App.1999).

The State does not claim that the testimony, in general, was irrelevant under Rule 401, but that, under Rule 702, appellant’s expert failed to take into account “enough of the pertinent facts ... to be of assistance [to] the jurors on the question of whether the appellant had lost the normal use of his mental and physical faculties by the reason of the introduction of alcohol into his body.” This argument stems from our statement in Jordan that “the question under Rule 702 is ... whether the expert’s testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue.” Jordan, 928 S.W.2d at 556. The State maintains that the Court of Appeals failed to perform a Jordan analysis and that, had the lower court done so, it would have found that the facts presented by the expert were not sufficient to assist the trier of fact.

While the Court of Appeals discussed some of the evidence presented at trial, it did not detail the facts considered and taken into account by Tisdell in giving his testimony. The reviewing court should, under Rule 702, examine the expert’s testimony to assess whether the expert made an adequate effort to tie the relevant facts of the case to the scientific principles about which he testified. See Griffith v. State, 988 S.W.2d 282 (Tex.Crim.App.1998) (expert witness did “fit” his expert knowledge with the particular facts of the case in his evaluation of appellant’s future dangerousness), cert. denied, 528 U.S. 826, 120 S.Ct. 77, 145 L.Ed.2d 65 (1999); Williams v. State, 895 S.W.2d 368 (Tex.Crim.App.1994) (expert witness did not connect generic testimony concerning the psychological profile of a particular type of offender to the facts of the case); Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App.1993) (expert’s general discussion of unreliability of eyewitness testimony failed to address how those tendencies toward unreliability applied to the facts of the case), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Pierce v. State, 111 S.W.2d 399 (Tex.Crim.App.1989) (expert’s testimony failed to apply general principles of unreliability in eyewitness testimony to the specific facts of the case), cert. denied, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990).

The Court of Appeals noted one fact that was considered and applied by Tis-dell — the passage of time between appellant’s last beer and his arrest. Morales, slip op. at 4 n. 2 (noting that Tisdell “testified that if appellant had not had any beer within six to seven hours of the arrest, he would not have been impaired ... ”). But the court failed to discuss whether this fact alone, as applied to the principles regarding alcohol burn-off, was enough “to be of assistance to the trier of fact” under Rule 702, or whether other facts were and/or should have been considered. The Court of Appeals’ analysis of this question under Rule 702 was inadequate.

On the basis of this point of error, the judgment of the Court of Appeals is vacated and this case is remanded to that court for reconsideration consistent with this opinion.

III.

The State’s second point of error argues that “the Court of Appeals erred in reversing appellant’s conviction without conducting a meaningful harm analysis under Rule 44.2(b).”

Rule 44.2(b) provides that errors in criminal cases which do not affect substantial rights are to be disregarded on appeal. TEX.R.APP.PROC. 44.2(b). We have previously declared that “[a] substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266 at 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557). We have also stated that “[a] criminal conviction should not be overturned for non-constitutional error [under Rule 44.2(b) ] if the appellate court, after examining the record as whole [sic], has fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410 at 417 (Tex.Crim.App.1998).

Most recently, we explained that when conducting a harm analysis under Rule 44.2(b), “an appellate court need only determine whether or not the error affected a substantial right of the defendant. To make this determination, appellate courts must decide whether the error had a substantial or injurious effect on the jury verdict. The very process of reaching this decision, is the performance of a Rule 44.2(b) harm analysis.” Llamas v. State, 12 S.W.3d 469, 471 & n. 2 (Tex.Crim.App.2000).

In assessing the likelihood that the jury’s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it- might be considered in connection with other evidence in the case. The reviewing court might also consider the jury instruction given by the trial judge, the State’s theory and any defensive theories, closing arguments and even voir dire, if material to appellant’s claim. See Llamas, 12 S.W.3d at 471; cf. Medina v. State, 7 S.W.3d 633, 645 & n. * (Tex.Crim.App.1999) (Womack, J., concurring) (addressing factors to be considered when performing harm analysis for unobjected to jury charge error), cert. denied, — U.S. —, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). When the claimed error is the exclusion of a relevant piece of evidence, as is the case here, conducting a meaningful harm analysis would necessarily require consideration of all evidence which was admitted at trial. In short, the lower court should “examin[e] the record as [a] whole” when conducting a harm analysis. Johnson, 967 S.W.2d at 417.

The fact that a piece of evidence was wrongfully excluded from the jury’s consideration is not sufficient to warrant reversal of a conviction unless the exclusion had a “substantial and injurious effect or influence in determining the jury’s verdict.” King, 953 S.W.2d at 271. The Court of Appeals erred in failing to consider whether the exclusion of the expert testimony had such an effect or influence.

We vacate the judgment of the Court of Appeals and remand this cause to that court for reconsideration consistent with this opinion.

McCORMICK, P.J., concurred in the result.

      . Depina Correia was parked on the side of the road, completing an unrelated traffic stop, when he noticed appellant’s vehicle driving toward him from behind with two wheels on the road and two wheels on the sidewalk. Appellant swerved back onto the road just before hitting the officer's car. Depina Corr-eia activated his emergency equipment and attempted to stop appellant. Appellant continued driving, ran a red light, and finally pulled his vehicle to a stop on the side of the road. When appellant exited the vehicle, De-pina Correia noticed he had trouble walking and could not keep his balance. The officer had appellant perform a horizontal gaze nys-tagmus (HGN) test and, based on his performance, as well as what the officer had observed, Depina Correia decided that appellant was intoxicated and arrested him.

      . Roberts testified that appellant had trouble walking and seemed to be confused as to what was happening at the police station. Roberts also testified that appellant refused to take a breath test and refused to perform any field sobriety tests at the station.

      .Tisdell’s vitae was admitted in evidence, detailing Tisdell's credentials and professional history. Appellant then presented Tisdell with a hypothetical fact situation concerning consumption of alcohol and the "burn off” of that alcohol. The hypothetical involved a person drinking five or six beers, the last one being at 6:00 p.m., and then being stopped by a police officer at 2:15 a.m., nine hours later. This hypothetical closely matched the details of Cromin’s testimony regarding appellant’s drinking on the day of the arrest. Appellant questioned Tisdell as to whether this hypothetical person would be suffering any impairment, mental or physical, due to the alcohol, at the time of the 2:15 a.m. stop. Tisdell responded, "No sir. It’s my opinion that he would not.”

      . The Texas Rules of Criminal Evidence were amended on March 1, 1998, at which time they were combined with the Texas Rules of Civil Evidence to make up the Texas Rules of Evidence. Texas Rule of Criminal Evidence 702 was identical to the current version of Texas Rule of Evidence 702.
      Texas Rule of Evidence 702 reads:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

      . Texas Rule of Evidence 403 reads:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

      . Although the State argues in its brief that Tisdell’s testimony also-fails to meet the Kelly requirement of reliability, the State did not make that argument before the Court of Appeals and the Court of Appeals did not address it sua sponte.

      . On remand, the Court of Appeals may find that Tisdell’s testimony met the "fit” requirement and that there was no Rule 403 prejudice in presenting the testimony to the jury, meaning the exclusion of the testimony was error. In light of this possibility, we will address the State's second point of error. Of course, if the Court of Appeals concludes, on remand, that exclusion of the testimony was not error, then it need not reconsider the question of harm.


author: PER CURIAM.

text:
    Tony ARROYO, Appellant, v. The STATE of Texas.
    No. 0288-00.
    Court of Criminal Appeals of Texas.
    Dec. 6, 2000.
    Stephanie Stevens, Velia J. Meza, San Antonio, for appellant.
    Betty Marshall, Asst. St. Atty., Austin, Matthew Paul, State’s Atty., for State.
   OPINION

The opinion of the Court was delivered

PER CURIAM.

A jury convicted Appellant of assault and assessed punishment at confinement for one year and a $4000 fine. The Court of Appeals reversed the conviction. Arroyo v. State, 9 S.W.3d 380 (Tex.App.—San Antonio 1999).

The State seeks discretionary review of the Court of Appeals’ holding that the trial court erred by omitting two sentences from the jury instruction required by Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). At the time the Court of Appeals decided this case, it did not have the benefit of our opinion in Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000), which overruled that portion of Geesa that required the jury instruction on the definition of reasonable doubt.

Accordingly, we grant ground one of the State Prosecuting Attorney’s petition, and vacate the Court of Appeals’ judgment. We remand this cause to the Court of Appeals for reconsideration in light of Paulson and for consideration of Appellant’s remaining points of error. The State Prosecuting Attorney’s second ground for review and the District Attorney s petition for discretionary review are dismissed without prejudice.


author: Chief Justice CORNELIUS.

text:
    Freddie M. HATTEN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 06-99-00168-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 23, 2000.
    Decided Oct. 24, 2000.

      Vernard G. Solomon, Marshall, for appellant.
    Richard Berry, Jr., Crim. Dist. Atty., Marshall, for appellee.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Chief Justice CORNELIUS.

Freddie Hatten appeals from the revocation of his community supervision. In September 1997, Hatten pleaded guilty to misdemeanor assault. The trial court assessed his punishment at 365 days’ confinement and a $4,000.00 fíne, but placed him on twenty-four months’ community supervision and assessed a $250.00 fíne.

In June 1999, the State moved to revoke Hatten’s community supervision. The trial court held a hearing, at which Hatten appeared without an attorney. Hatten signed an “Explanation of Revocation Rights Application to Proceed,” in which he indicated that he waived his right to an attorney and his right to a hearing, and pleaded true to the State’s allegations. The trial court found the State’s allegations true, revoked Hatten’s community supervision, and imposed the original sentence.

Hatten first contends the trial court erred by failing to suspend his sentence before placing him on community supervision. Such failure, Hatten contends, means he has already served the 365 days to which he was originally sentenced. Community supervision involves placing the defendant into a system of programs and sanctions for a certain time and under certain conditions imposed by the court, during which “a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.” Tex.Code CRImPROc. Ann. art. 42.12, § 2(2)(B) (Vernon Supp. 2000) (emphasis added). After a conviction or guilty plea, a judge “may suspend the imposition of the sentence and place the defendant on community supervision.” Tex.Code Crm.ProC.Ann. art. 42.12, § 3(a) (Vernon Supp.2000).

The question before us is whether the trial court must, in its judgment or otherwise, affirmatively suspend the sentence before placing the defendant on community supervision, or whether its order placing the defendant on community supervision operates to suspend the sentence. Hatten contends the former; the State contends the latter. We agree with the State.

In Wiltz v. State, 863 S.W.2d 463, 465 (Tex.Crim.App.1993), the Court of Criminal Appeals stated, “The order granting probation suspends the imposition of sentence until the probationer violates the terms of his probation or successfully completes the probationary period.” There the court was engaged in evaluating whether a ten year sentence with probation is more severe than five years’ straight time for purposes of determining whether a defendant who had successfully appealed his first conviction was sentenced vindictively after being retried and convicted. Id. at 464,

“The sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law .” Tex.Code CrimPROCAnn. art. 42.02 (Vernon Supp.2000). In McCullar v. State, 676 S.W.2d 587, 588 (Tex.Crim.App.1984), the appellant argued that the trial court’s statement — made before it placed the defendant on community supervision — that the defendant’s sentences for three separate convictions would run concurrently required the trial court to give him concurrent sentences when it revoked his community supervision. The Court of Criminal Appeals held that the trial court’s statement was superfluous because the imposition of the sentence is suspended when community supervision is granted, and the sentence is not imposed until community supervision is revoked.

The judgment in this case reads in part:

The Court ... assesses punishment in this cause at:
A fine of $4,000, plus costs, and 365 days in jail, with credit for time served, and the Defendant, having made his sworn application for probation, and the Court being of the opinion that probation should be granted.
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the defendant is hereby placed on active probation for a period of 24 months from date, upon the payment of $250, plus costs, if any, and shall observe the following terms and conditions of probation ....

The trial court’s judgment does not purport to impose its prescribed punishment on Hatten; rather, the language effectuating its judgment places Hatten on community supervision for a period of twenty-four months. The effect of the trial court’s judgment is to suspend imposition of the 365 days’ confinement and $4,000.00 fine in favor of twenty-four months’ community supervision.

Hatten next contends he was denied the assistance of counsel at his revocation hearing. As mentioned previously, Hatten signed an “Explanation of Revocation Rights Application to Proceed” in which he waived his right to an attorney and his right to a hearing, and pleaded true to the State’s allegations. At the hearing on revocation, the trial court discussed with Hatten his decision to waive his right to a hearing and his decision to plead true to the State’s allegations. The trial court did not discuss Hatten’s decision to waive his right to an attorney. The judgment recites that Hatten “appeared in person, without an attorney,” and “[t]he Court admonished [him] regarding the written waiver.”

Hatten’s contention is based on two cases in which we held a similar procedure violated the defendants’ right to the assistance of counsel where the record did not reflect that the defendants knowingly and intelligently waived their right to counsel. See Henderson v. State, 13 S.W.3d 107, 109 (Tex.App.—Texarkana 2000, no pet.); George v. State, 9 S.W.3d 234, 236 (Tex.App.—Texarkana 1999, no pet.). These cases involved the defendants’ waiver of counsel at trial, where the right to counsel and the effective assistance of counsel are firmly established. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (1963).

This case is different because it involves a hearing on revocation. The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the trial court to determine the defendant’s right to counsel at a revocation hearing on a case-by-case basis. Gagnon v. Scarpelli, 411 U.S. 778, 787-88, 93 S.Ct. 1756, 36 L.Ed.2d 656, 664-65 (1973). The Texas Court of Criminal Appeals has distinguished Gagnon because Texas employs a combined revocation and sentencing procedure in which revocation precedes imposition of sentence. Ex parte Shivers, 501 S.W.2d 898, 900-01 (Tex.Crim.App.1973). Texas’ system makes revocation part of the criminal trial, rather than an administrative proceeding, meaning the defendant has a Sixth Amendment right to counsel. Parker v. State, 545 S.W.2d 151, 155 (Tex.Crim.App.1977); see also Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed.2d 336, 342 (1967); Ex parte Shivers, 501 S.W.2d at 900-01. The defendant also has a right to counsel at a revocation proceeding under Article I, § 10 of the Texas Constitution. Parker v. State, 545 S.W.2d at 155.

The defendant may, of course, waive these rights if the waiver is done knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562, 581 (1975); Lugaro v. State, 904 S.W.2d 842, 843 (Tex.App.—Corpus Christi 1995, no pet .); Bell v. State, 774 S.W.2d 371, 377 (Tex.App.—Austin 1989, pet. ref'd). The defendant must be given a full understanding of the right to counsel, and he must be admonished on the dangers and disadvantages of self-representation. Faretta v. California, 422 U.S. at 835, 95 S.Ct. 2525; Collier v. State, 959 S.W.2d 621, 626 (Tex.Crim.App.1997). The admonishment must be on the record. Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992); Hencey v. State, 904 S.W.2d 160, 161 (Tex.App.—San Antonio 1995, no pet.).

The judgment here recites that Hatten was admonished, but the record reflects that the trial court wholly failed to adequately inform Hatten on the record of his right to counsel and the dangers and disadvantages of self-representation. The only evidence of a knowing and intelligent waiver is the waiver form Hatten signed. This kind of waiver is inadequate. Henderson v. State, 13 S.W.3d at 109; George v. State, 9 S.W.3d at 236.

For the reasons stated, we reverse the trial court’s judgment and remand the case to that court for a new hearing on the motion to revoke.

      . In Texas, a defendant has a statutory right to counsel at a hearing on revocation. Tex. Code Crim.Proc.Ann. art. 42.12, § 21(d) (Vernon Supp.2000). Hatten does not assert that right before this Court, and we do not consider it.


author: Justice CHAVEZ.

text:
    In re FRANK A. SMITH SALES, INC. d/b/a Frank Smith Toyota and Jimmy Resendez.
    No. 13-00-544-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 2, 2000.

      Christiana Dijkman, Neal D. Kieval, Phillips & Akers, Houston, for Relator.
    Susan Renee Sullivan, Griffith, Saenz & Hill, Julian Rodriguez, Jr., Valone C. Glass, McAllen, for Real Party In Interest.
    Thomas C. Smith, Dallas, for Amicus Curiae.
    Before Justices HINOJOSA, YÁÑEZ, and CHAVEZ.
   OPINION

Opinion by

Justice CHAVEZ.

Relators Frank Smith Sales and Jimmy Resendez (Frank Smith) bring a petition for writ of mandamus seeking discovery of a settlement agreement that Frank Smith alleges will entitle it to a settlement credit in pending litigation. We conditionally grant the writ.

This proceeding arises from a lawsuit brought by David Pena. Pena alleged that, while shopping for a new vehicle at Frank Smith’s auto dealership, a Frank Smith salesman appropriated his credit information and used that information to accumulate substantial debts in Pena’s name. Pena brought suit in state court against Frank Smith Sales and Jimmy Re-sendez, and also sued three credit reporting agencies in federal court. Pena settled the federal suit, and Frank Smith has sought discovery of the settlement agreement on the ground that the settlement will entitle it to a credit on any recovery Pena obtains against Frank Smith.

Generally, mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding).

Frank Smith relies on the common law “one satisfaction” rule and also the provisions of chapter 33 of the Texas Civil Practice and Remedies Code. The “one satisfaction” rule provides that, where a claimant seeks recovery for the same injuries from multiple parties, the claimant is entitled to only one recovery on those injuries. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 5 (Tex.1991); Bradshaw v. Baylor Univ., 126 Tex. 99, 84 S.W.2d 703, 705 (Tex.Com.App.1935). Where there is no rational basis for distinguishing between the damages sought in one case and the damages underlying a settlement in another case, the “one satisfaction” rule applies. Sterling, 822 S.W.2d at 8. Statutory law allows a defendant to obtain a credit against any recovery of a claimant who has already settled a claim for the same injuries with another party. Tex.Civ .PRac. & Rem.Code Ann. § 33.012 (Vernon 1997). The rationale for this doctrine is that the plaintiff should not receive a windfall by recovering an amount in court that covers the plaintiffs entire damages, but to which a settling defendant has already partially contributed. First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 78 (Tex.1993).

Settlement agreements, including the amount of the settlement, are discoverable where they are shown to be relevant. Tex.R.Civ.P . 166b(2)(f)(2); Ford Motor Co. v. Leggat, 904 S.W.2d 643, 649 (Tex.1995). Generally, the party resisting discovery has the burden to plead and prove the basis of its objection. State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991); General Elec. Co. v. Salinas, 861 S.W.2d 20, 23 (Tex.App.—Corpus Christi 1993, no writ); see also In re Continental Ins. Co., 994 S.W.2d 423, 428 (Tex.App.—Waco 1999, orig. proceeding) (party resisting discovery of settlement agreement had burden to show settlement was not relevant).

The issue before us, then, is whether Pena carried his burden to prove that the settlement agreement he reached with the credit reporting agencies did not compensate him for the same injuries he sought to recover from Frank Smith, and therefore was not relevant.

In his state court petition against Frank Smith, Pena stated his injuries as:

1) Economic damages;
2) Credit damage, both (sic) past, present, and future;
3) Mental anguish in the past and which will in all reasonable probability continue in the future;
4) Embarrassment and humiliation;
5) Worry and stress;
6) Compensatory and actual damages;
7) Pre-judgment interest at the highest rate allowed by law;
8) Post-judgment interest at the highest rate allowed by law;
9) Punitive damages;
10) All attorney fees; and
11) Court costs.

Pena also alleged that Frank Smith had “converted the plaintiffs money.” Pena’s petition detailed several incidents where his damaged credit prevented him from making purchases and described his “humiliation” and mental anguish from these incidents. The petition did not describe any other forms of “economic damages” or “compensatory and actual damages,” or explain in what way Frank Smith had “converted the plaintiffs money.”

Similarly, Pena’s complaint in federal court against the credit reporting agencies listed his damages as:

1) Past and future mental anguish;
2) Embarrassment;
3) Humiliation;
4) Exemplary damages;
5) Attorney fees;
6) Costs,
7) Actual and economic damages;
8) Loss (sic) wages;
9) Loss of opportunity;
10) Compensatory damages;
11) Prejudgment and post judgment interest; and
12) Any other relief to which Plaintiff may be justly entitled to receive.

The complaint also alleged that Pena had suffered “damage to reputation.” Just as the state court petition had done, Pena’s federal complaint repeatedly alleged that he had been denied credit for purchases and thereby suffered humiliation and mental anguish. The complaint also contended that Pena had spent money on attorneys to clear up his credit record. However, the complaint did not specify any other means by which Pena had suffered “actual and economic damages,” or “loss of opportunity,” did not otherwise specify what should be compensated by his request for “compensatory damages,” and did not explain how he had suffered lost wages.

It is apparent that Pena sought recovery for the same set of injuries in both suits. Pena alleged that Frank Smith committed various torts in permitting its salesman to appropriate Pena’s credit information, and the credit reporting agencies committed various torts through the lethargic manner with which they cleared his credit record. Combined, these tortious acts repeatedly caused Pena to be denied credit for purchases, which caused him mental anguish. From the record before us, it is not possible to separate the effects of Frank Smith’s alleged torts from those of the credit reporting agencies. Therefore, we hold that Pena has failed to sustain his burden of proving that his settlement with the credit reporting agencies is not relevant to Frank Smith’s claim for a credit in the litigation pending against it.

Pena relies on Leggat, 904 S.W.2d 643; Palo Duro Pipeline Co. v. Cochran, 785 S.W.2d 455 (Tex.App.—Houston [14th Dist.] 1990, orig. proceeding) and the companion cases of Nermyr v. Hyde, 799 S.W.2d 472 (Tex.App.—El Paso 1990, orig. proceeding) and Burlington Northern, Inc. v. Hyde, 799 S.W.2d 477 (Tex.App.—El Paso 1990, orig. proceeding); all cases where discovery of settlement agreements was denied. However, those cases are inapposite because in none of those cases did the party seeking discovery argue that the settlement agreement was relevant under the “one satisfaction” rule. Rather, the courts were concerned that the party seeking discovery wanted the settlements merely for strategic advantage in settlement negotiations. See Leggat, 904 S.W.2d at 649; see also Palo Duro, 785 S.W.2d at 457.

Pena contends that, because Frank Smith has not yet pleaded its entitlement to a settlement credit, Frank Smith also “wants the settlement information in order to gain an unfair advantage during the upcoming negotiations.” However, it was not necessary for Frank Smith to have already pleaded its entitlement to a settlement credit. See Tex.Civ.Prac. & Rem.Code Ann. § 33.014 (Vernon 1997) (election of credit for settlements must be filed before issues are submitted to the trier of fact, otherwise defendant is considered to have elected sliding percentage election of section 33.012(b)). Furthermore, Frank Smith’s motivation is not the deciding factor — if Frank Smith establishes legitimate entitlement to discovery of the settlement, it does not matter if Frank Smith’s “real” motivation is one which, standing alone, would not support discovery.

Pena argues that Frank Smith is not entitled to mandamus because it has an adequate remedy by raising on appeal its complaint about the inability to discover the settlement agreements. However, remedy by appeal is inadequate when the trial court disallows discovery and the missing discovery cannot be made part of the appellate record. Walker, 827 S.W.2d at 843. When this occurs, a reviewing court is unable to evaluate the effect of the trial court’s alleged error on the record before it. Id. at 843-844. In this case, the trial court’s protective order prohibiting discovery of the settlement agreements prevents them from being part of the record on appeal. Pena objected to discovery on the ground that the settlement was confidential. Therefore, the agreement cannot be included in the record as a bill of exceptions, because to do so would breach the confidentiality urged by Pena.

An appeal is also inadequate as a remedy where the party’s ability to present a viable claim or defense at trial is vitiated by or severely compromised by the trial court’s discovery order. Able Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex.1995). In this case, Frank Smith cannot present its “one satisfaction” claim and its entitlement to a settlement credit without discovery of the settlement agreements. We hold that Frank Smith has no adequate remedy by appeal.

We conditionally grant relator’s petition for writ of mandamus. We order the trial court to vacate its April 13, 2000 order denying Frank Smith’s motion to compel production of the settlement agreement reached with the credit reporting agencies, and order the trial court to grant the motion to compel production of the settlement agreement. We are confident that the trial court will act in accordance with our directive. The writ will not issue unless the trial court fails to comply with this opinion.

      . Resendez was employed at the dealership, but he is not the salesman alleged to have appropriated Pena’s credit information.


author: Justice GRANT.

text:
    In re DYNAMIC HEALTH, INC., Community Health Systems, Inc., D.H.I. Hospitals, L.P., and Northeast Medical Center.
    No. 06-00-00077-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 14, 2000.
    Decided Nov. 8, 2000.

      John R. Mercy, Mercy, Carter & Elliott, LLP, Texarkana, Phillip R. Livingston, Livingston & Livingston, PC, Houston, Dan Meehan, Turner, Meehan & Porter, LLP, Bonham, for relator.
    G. David Smith, Law Office of G. David Smith, Dallas, for real party in interest.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Justice GRANT.

Dynamic Health, Inc., Community Health Systems, Inc., D.H.I. Hospitals, L.P., and Northeast Medical Center (Rela-tors) have petitioned this court to issue a writ of mandamus, ordering the trial court to set aside its orders awarding sanctions in cause number 33240, entitled John W. Chung v. Dynamic Health, Inc., et al., in the Sixth Judicial District Court of Fannin County, Texas.

John W. Chung, M.D. (real party in interest herein and plaintiff below) sued for damages from Relators (defendants below) for breach of contract, conversion, defamation, intentional infliction of emotional distress, and fraudulent inducement, arising out of a “Physician Recruitment Agreement” between Chung and Relator Dynamic Health, Inc., which at the time the agreement was signed, was the owner and operator of Northeast Medical Center (Hospital) in Bonham, Texas. The ownership of the Hospital changed during the events in question resulting in the naming of the other party defendants.

Evidence was presented showing the following: Chung was an orthopedic surgeon practicing in Southern California when he was recruited by Dynamic to relocate to Bonham, due to the hospital’s need for such medical specialty on its staff. In October 1994, Chung entered into the agreement with Northeast Medical Center, terminated his California practice, and relocated to Bonham. The terms of the agreement included providing for a specific level of income for the first two years of Chung’s practice, a loan to Chung to assist him in buying out of an outstanding lease in California, an office rental allowance, an allowance for moving and other expenses incurred in his relocation, a housing allowance and reimbursement for actual overhead expenses, and medical liability insurance costs. In return Chung was required to engage in the full-time practice of medicine at Northeast Medical Center for at least two years. In March 1995, Chung commenced the practice of medicine in Bonham, Texas. Beginning in September 1995, D.H.I. Hospitals, L.P. leased office space to Chung in a building that it owned at 505 Lipscomb in Bonham. In August 1996, Northeast Medical Center was sold to Community Health Systems, Inc., which operated the hospital as Northeast Medical Center, L.P.

A dispute then arose between Chung and the Hospital regarding alleged failure by it to make payments to Chung which were owed under the agreement. Northeast Medical Center, in turn, accused Chung of violating certain hospital rules and procedures in his treatment of certain patients. Chung was eventually absolved of any wrongdoing by the peer review committee of the hospital. During the period of this dispute, two other significant events occurred: 1) Chung filed for bankruptcy and 2) the Hospital, represented by Deanya Kueckelhan, filed an action for declaratory judgment in Fannin County, serving Chung by publication in a newspaper published in Trenton, but not in Bon-ham. Chung asserted that, at that time, he had counsel representing him willing to accept service on his behalf in the dispute with the Hospital. The Hospital obtained a judgment against Chung’s property.

What precipitated this lawsuit was the action taken by Northeast Medical Center on December 26, 1996, in forcibly evicting Chung from the office it had rented to him under the agreement.

During the discovery phase of this litigation, Chung propounded discovery on the defendants, including written interrogatories, requests for production, and requests for admission. The record, filed with Re-lators’ petition, shows that on September 13,1999, Chung filed his Motion to Compel Discovery Responses, to Deem Requests for Admissions Admitted, and for Awarded Sanctions. Chung also filed a Motion for Partial Summary Judgment on October 12, 1999.

After a hearing conducted on December 6, 1999, the trial court awarded partial summary judgment to Chung, finding that Relators had breached both the Physician Recruitment Agreement and the office lease agreement with Chung and rejected the affirmative defenses of limitations, failure of consideration, and payment asserted by Relators. The trial court also entered an order: (1) overruling Relators’ objections to Chung’s discovery; (2) ordering Relators to fully and completely respond to certain enumerated requests for production within thirty days; (3) deeming and ordering admitted certain enumerated requests for admission propounded by Chung; and (4) awarding sanctions of $500,000 to Chung, for which Relators were to be jointly and severally liable, conditioned on Relators’ full compliance with the enumerated requests for production within thirty days of the date of the hearing.

Chung subsequently moved for additional sanctions on January 7, 2000. This motion requested the trial court to strike Relators’ pleadings, render a default judgment against them, and award Chung attorney’s fees of $25,000, pursuant to Tex. R.CivP. 215.2(b)(5) and 215.2(b)(8). On March 17, 2000, the trial court issued its Order Granting Sanctions finding, inter alia, “that said Defendants and their attorney have engaged in a continuous course of discovery abuse by failing to provide material and relevant discovery and that said Defendants have intentionally destroyed evidence material and relevant to this litigation when they knew they should have preserved such evidence.” The trial court also found that previous sanctions imposed by the trial court had failed to compel Relators to comply with discovery requests and that Chung’s attorney’s fees and expenses of $33, 250 were reasonable. The trial court ordered that Relators’ pleadings be stricken and ordered a hearing on damages be held at which Relators would not be permitted to object to evidence or to cross-examine witnesses. The trial court also ordered the payment of $33,250 in attorney’s fees to Chung.

This court must initially determine whether mandamus is an appropriate remedy in this situation.

The writ of mandamus will issue only to compel the performance of a ministerial act or duty, or to correct a clear abuse of discretion by the trial court. The trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). In addition to showing the failure to perform a ministerial duty or the clear abuse of discretion by the trial court, the relator must also show that he does not have a clear and adequate remedy at law, such as a normal appeal. The requirement that parties seeking mandamus relief establish the lack of an appellate remedy is a fundamental tenet of mandamus practice. Id. at 840.

When, as is shown to have occurred in this case, a trial court imposes discovery sanctions having the effect of precluding a decision on the merits of a party’s claims— such as by striking pleadings, dismissing an action, or rendering a default judgment — a party’s remedy by eventual appeal is inadequate unless the sanctions are imposed simultaneously with the rendition of a final, appealable judgment. If such an order of sanctions is not immediately ap-pealable, the party may seek review of an order by petition for writ of mandamus. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 920 (Tex.1991); In re Zenergy, 968 S.W.2d 1, 9 (Tex.App—Corpus Christi 1997, orig. proceeding).

In his response to the petition, Chung concedes that mandamus is appropriate to review the so-called “death penalty” sanctions imposed by the trial court. However, he argues that the award of partial summary judgment and the award of monetary sanctions are adequately reviewable on appeal, and are, therefore, not appropriate for mandamus.

Regarding the partial summary judgment, Chung cites State Farm Fire & Cas. v. Griffin, 888 S.W.2d 150, 153 (Tex.App.—Houston [1st Dist.] 1994, no pet.), in support of his contention that the partial summary judgment is interlocutory, appealable only when the case is finally disposed of by a final judgment or order. The order clearly grants only partial summary judgment, and the hospital defendants acknowledge that the judgment is not final, in that subsequent to the court’s order they filed a “Motion to Reconsider Partial Summary Judgment.” (Emphasis added.) The State Farm case cites Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959), in which the Supreme Court stated

In our opinion a summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court. In the absence of an order of severance, a party against whom such an interlocutory summary judgment has been rendered will have his right of appeal when and not before the same is merged in a final judgment disposing of the whole case.

Id. at 200-01 (citations omitted).

The record in the present case does not show, and Relators do not contend, that there was a severance of this part of the case. Thus, under the stated rule, this portion of the trial court’s ruling may not be reviewed by mandamus. There is clearly an adequate remedy at law.

Chung also argues that the $500,000 monetary sanction levied by the trial court is not reviewable by mandamus. The mere levy of sanctions does not in and of itself warrant mandamus relief, as such awards are generally reviewable by appeal. In order to warrant extraordinary relief, the sanctions award must 1) preclude a decision on the merits; 2) impede the defense or prosecution of the case; 3) deny substantial rights; or 4) cause some type of immediate irreparable injury to render mandamus appropriate. In re Carter, 958 S.W.2d 919, 923 (Tex.App.—Amarillo 1997, orig. proceeding). One or more of these factors must be raised before the trial court and an adverse ruling obtained in order to preserve for mandamus review the alleged abuse of discretion by the trial court. In re Zenergy, 968 S.W.2d at 11.

Relators in the present case have not alleged in their petition their inability to proceed with the litigation, or any of the other factors recognized by the above-cited cases as requisites for mandamus relief. The wording of the sanctions award specifically requires their payment only upon the issuance of a final judgment or order. Because Relators have an adequate remedy by appeal, we deny mandamus relief as a means of review of the monetary sanctions levied by the trial court.

The trial court’s sanction from which Relators seek extraordinary relief from this court include the striking of Relators’ pleadings and permitting Chung to appear and present evidence of his damages, and not permitting Relators to raise objections, cross-examine Chung’s witnesses, or present any evidence of their own.

The imposition of discovery sanctions serves three legitimate purposes: 1) to secure compliance with discovery rules; 2) to deter other litigants from similar conduct; and 3) to punish violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex.1992). Whether the imposition of such sanctions is just is measured by two standards: 1) the finding of a direct relationship between the offensive conduct and the sanction imposed; and 2) the sanction, in order to be just, must not be excessive. TransAmerican Natural Gas, 811 S.W.2d at 917. In addition to these two requirements, in the case of so-called “death penalty” sanctions, this court has recognized two additional criteria: 3) that the trial court should first impose lesser sanctions to test the effectiveness of these less severe sanctions at securing compliance and 4) that the sanctioned conduct justifies a presumption that the party’s claim or defense lacks merit. Prudential Prop. and Cas. Co. v. Dow Chevrolet-Olds, Inc., 10 S.W.3d 97, 103 (Tex.App.—Texarkana 1999, pet. dism’d) (citing Chrysler Corp., 841 S.W.2d at 849-50).

Prior to the imposition of sanctions, the trial court on two occasions made factual determinations as to the conduct of the Hospitals in responding to Chung’s discovery. In issuing its first set of sanctions, the trial court found that: 1) the Hospitals “have failed to provide the discovery requested” and 2) that the Hospitals “have withheld discovery that prevents the Plaintiff from effectively evaluating and proving or disproving elements of damages .” In the death penalty sanction order, the trial court found that the Hospitals had failed to provide discovery and that “said Defendants and their attorney have engaged in a continuous course of discovery abuse by failing to provide material and relevant discovery and that said Defendants have intentionally destroyed evidence material and relevant to this litigation when they knew they should have preserved such evidence.”

With respect to resolution of issues of fact, or matters committed to the discretion of the trial court, the reviewing court may not substitute its judgment for that of the trial court. It is a relator’s burden to demonstrate that the trial court could have reached only one decision. Even if the appellate court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Walker, 827 S.W.2d at 839-40.

On September 13, 1999, Chung moved the trial court to enter an order compelling Relators to comply with discovery requests, including, specifically, the following discovery:

REQUEST FOR PRODUCTION NO. 3: All documents reflecting any payments made by you, your agents, or employees to Dr. John W. Chung.
REQUEST FOR PRODUCTION NO. A All documents reflecting an inventory of items in Dr. John W. Chung’s office the subject of the Lease Agreement at-taehed to the Plaintiffs Original Petition as Exhibit 2 on the date of his eviction therefrom.
REQUEST FOR PRODUCTION NO. 5: All documents reflecting disposition by you of any property owned or leased by Dr. John W. Chung.
REQUEST FOR PRODUCTION NO. 6: All documents regarding any claims or complaints of improper medical practice by Dr. John W. Chung.
REQUEST FOR PRODUCTION NO. 7: All documents reflecting any act of breach of the Physician’s Recruitment Agreement attached to the Plaintiffs Original Petition as Exhibit 1.
REQUEST FOR PRODUCTION NO. 8: All documents reflecting any act of breach of the Lease Agreement attached to the Plaintiffs Original Petition as Exhibit 2.
REQUEST FOR PRODUCTION NO. 15: All financial statements reflecting the operation of Northeast Medical Center in Bonham, Texas for the years 1994, 1995,1996 and 1997.
REQUEST FOR PRODUCTION NO. 16: Your financial statements for 1994, 1995,1996 and 1997.
REQUEST FOR PRODUCTION NO. 17: Your income tax returns for the years 1994, 1995, 1996, 1997, and 1998.
REQUEST FOR PRODUCTION NO. 19: Any documents in your possession reflecting any attempts to take any form of disciplinary action against Dr. John W. Chung at Northeast Medical Center in Bonham, Texas.
REQUEST FOR ADMISSION NO. 5: M.J. McCoy was authorized by you to evict Dr. John W. Chung from 505 Lipscomb, Bonham, Texas in December, 1996.
REQUEST FOR ADMISSION NO. 6: Deanya Kueckelhan was authorized by you to file a declaratory judgment action against Dr. John W. Chung in Cause No. 32277 in the 64th Judicial District Court in Bonham, Texas.
REQUEST FOR ADMISSION NO. 7: Deanya Kueckelhan was authorized by you or persons acting on your behalf to draft and send the letter written by her addressed to Mr. E.C. Green on October 25, 1996 (supplied as Exhibit A to the Plaintiffs Responses to DHI Hospital, L.P.’s Request for Production).
REQUEST FOR ADMISSION NO. 8: All information regarding the allegation in Deanya Kueckelhan’s letter of October 25, 1996 (identified in the preceding request for admission) was supplied to her by you or persons acting on your behalf.
REQUEST FOR ADMISSION NO. 10: The patient treatment on October 25, 1996 and October 14,1996 referred to in Deanya Kueckelhan’s letter of October 25, 1996 was performed by Dr. John W. Chung in accordance with Northeast Medical Center policies and procedures.
REQUEST FOR ADMISSION NO. 17: Dr. John W. Chung was not paid any compensation pursuant to the Physician’s Recruitment Agreement between Northeast Medical Center and Dr. John W. Chung during the months of September, October, November and December, 1996.

On December 8, 1999, after a hearing, the trial court, inter alia, overruled all objections by Relators to the above-quoted discovery, ordered Relators to fully and completely respond to Chung’s requests for production, and deemed admitted the above-quoted requests for admissions. In addition, the trial court imposed on Rela-tors conditional sanctions of $500,000 to be withdrawn if Relators fully complied with the requests for production within thirty days from December 6,1999.

In January 2000, Chung filed a motion for additional sanctions against Relators. This motion alleged that on October 4, 1999, the motion to compel was set for a hearing, at which Relators’ counsel failed to appear. Also, Chung alleged that “[d]espite phone calls from the Plaintiffs counsel and the impending sanctions, the Hospital Defendants have not provided anything.” The motion alleged that Rela-tors’ failure to produce the requested items prejudiced Chung’s ability to prosecute his case. In a brief in support of Chung’s motion, Chung charged Relators with spoliation of evidence and the complete failure to provide discovery.

The deposition testimonies of various employees, officers, and former officers of Northeast Medical Center, as well as Chung and his former employees, indicate that one or more of Relators’ employees evicted Chung from his office, changed the locks, and locked all of Chung’s office equipment and personal items inside the office. The depositions show that Rela-tors’ employees were directed to and did prepare written listings or inventories of the contents of the office and gave them to their supervisors. One former hospital administrator testified that he attempted to take a videotaped inventory, but the batteries on the video camera gave out before completion. The testimony indicated that several of the hospital departments received furniture and medical equipment, such as x-ray "viewing boxes and examination tables, from Chung’s office. One individual testified that he observed small yellow stick-up notes on pieces of the furniture, indicating the department to which it was to be delivered. Notwithstanding all of this, Relators were not able to provide any documentation with regard to the whereabouts and disposition of Chung’s property. The deposition testimony also demonstrates that Re-lators should reasonably have anticipated litigation (their own employees thought Chung would sue because of the eviction; Relators themselves initiated the declaratory judgment action; and Chung’s bankruptcy was pending at the time of the eviction).

After a hearing held March 9, 2000, the trial court on March 17, 2000, made the following findings and orders: (1) that Re-lators had failed to comply with its previously issued discovery orders; (2) that Re-lators and their lawyers had engaged in a continuing course of discovery abuse by failing to provide material and relevant discovery and by engaging in spoliation of evidence; (3) that the trial court’s previous orders and sanctions had not produced any results; (4) that Chung had incurred and was entitled to recover reasonable attorney’s fees of $33,225; (5) that Relators’ pleadings be stricken; and (6) that a hearing be held to determine Chung’s damages, at which Relators would be permitted no cross-examination and no witnesses on their behalf.

All of the discovery requests related to the whereabouts of Chung’s office property, as well as any lists and inventories related to same, were met with complete rejection. These requests and the responses were the main focus of the extraordinary relief requested by Relators. However, as pointed out by Chung, these were only part of the information requested and not provided by Relators. Relators also failed to respond to proper discovery requests concerning any payments made by them to Chung, concerning complaints of alleged improper medical practice by Chung, concerning alleged breach of contract by Chung, concerning financial statements of Northeast Medical Center, and concerning any disciplinary actions taken against Chung. The trial court found no proper basis for objections to these requests raised by Relators, and Relators raise no such objections in their petition to this court.

The Rules of Civil Procedure authorize a trial court, after notice and hearing, upon a finding that a party to a lawsuit failed to comply with proper discovery requests or to obey an order to provide or permit discovery, to issue “an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party....” Tex.R.Civ.P. 215 .2(b)(5).

The trial court issued such an order in this case, in effect, rendering a default judgment against Relators and permitting Chung to prove his damages without opposition. The imposition of these types of sanctions, termed “the most devastating a trial court can assess,” TransAmerican Natural Gas, 811 S.W.2d at 917-18, are limited by 1) the finding of a direct relationship between the offensive conduct and the sanction imposed and 2) the sanctions must not be excessive, as well as consideration of constitutional due process. Id. at 917. The Supreme Court in TransAmerican points out that the striking of pleadings or the rendition of a default judgment for discovery abuse adjudicates the party’s claims without regard to their merits, but based on their conduct of discovery. Id. at 918. Constitutionally, this is not permitted unless the party’s discovery abuse justifies the presumption that its claims or defenses lack merit. “Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules.” Id. at 918.

We also have a finding by the trial court of destruction of evidence — spoliation — by Relators. Death penalty sanctions are authorized in the most egregious case. Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex.1998). In Justice Baker’s concurring opinion in Trevino, he writes that whether such action is sanctionable and the appropriate sanction to be imposed requires a determination 1) of whether there was a duty to preserve evidence; 2) of whether the alleged spoliator either negligently or deliberately spoliated evidence; and 3) of whether the spoliation prejudiced the nonspoliator’s duty to present its case or defense. Id. at 954-55 (Baker, J., concurring). If the required elements of spoliation are found, “courts can dismiss an action or render a default judgment when the spoliator’s conduct was egregious, the prejudice to the nonspoliat-ing party was great, and imposing a lesser sanction would be ineffective to cure the prejudice.” Id. at 959 (Baker, J., concurring). In addition, when a party improperly destroys evidence, trial courts may submit a spoliation presumption instruction to the jury.

In the present case, we find all of the elements for the imposition of death penalty sanctions to have been met. Deposition testimony indicates that management of Northeast Medical Center had disposed of Chung’s property and had written and possibly videotaped records of same. Yet, they would not produce them, despite the imposition of significant monetary sanctions. These records were absolutely essential to Chung’s claims. In addition, Relators have offered no alternative explanation for the absence of these records. A large medical facility would normally have records of the origin, age, and description of the personal property contained within its facility, if only for insurance and tax purposes. Further, Relators offer no excuse or reason why the other information requested, such as its financial records, was not produced in response to a direct order of the court. These records were essential to Chung’s case, and their absence certainly prejudiced the pursuit of his legal action against Relators. The trial court imposed lesser sanctions to no avail; the record shows that counsel for Chung tried on an informal basis to get the attorney for the Relators to produce the information requested, also to no avail.

The proper objective of Rules of Civil Procedure is to obtain a just, fair, equitable, and impartial adjudication of the rights of litigants under established principles of substantive law. Tex.R.Cxv.P. 1. The aim and purpose of the discovery process is the administration of justice by allowing the parties to obtain the fullest knowledge of the issues and facts prior to trial.

In other words, the ultimate purpose of discovery is to seek the truth so that disputes may be decided by what the facts reveal, not by what facts are concealed.
Sanctions are available to trial courts to assure compliance with the discovery process, to deter those who might be tempted to abuse discovery in the absence of a deterrent, and to punish parties that violate the rules.

See 3 McDonald Texas Civil Practice § 12:2 (1992) (Emphasis added.).

If one party to a lawsuit flagrantly disregards the rules of discovery, prohibiting a determination of the controversy by what the facts reveal and not by what is concealed, the flagrantly offending party must eventually forfeit his right to a possible determination in his favor. Under the circumstances shown, both Chung and the trial court were entitled to the presumption that Relators’ defenses lacked merit.

In summary, we hold that:

1) mandamus will not lie to review the trial court’s granting of partial summary judgment in favor of Chung; there is an adequate remedy by appeal;

2) the trial court’s award of monetary sanctions is, in this case, not reviewable by mandamus; there is an adequate remedy by appeal; and

3)under the authority cited above, and based on our review of the record, the trial court was justified in imposing death penalty sanctions against Relators.

The petition for writ of mandamus is denied.

      .Chung contends that the exact nature of the corporate and other form of ownership of Northeast Medical Center cannot be fully developed because information regarding these matters has not been forthcoming from Rela-tors. Relators in turn, in their petition, complain that the trial court's action against all defendants was not justified because the events in question occurred after the sale of Northeast Medical Center, and Dynamic Health was no longer in an ownership position and, further, in any case, certain of the named defendants would not be responsible for any alleged spoliation of evidence. We note, however, one counsel represented before the trial court on behalf of all named defendants. At that time, any individually named defendant had the opportunity to raise any individual defense that it might have had, but did not do so. Nowhere in either the discovery hearing of December 6, 1999 or March 9, 2000, do any of the individual defendants raise any issue about their individual lack of responsibility for failure to produce court-ordered discovery. As a general rule, a defendant must complain about a defect in parties before a case is called to trial. Shawell v. Pend Oreille Oil & Gas Co., 823 S.W.2d 336, 338 (Tex.App.—Texarkana 1991, writ denied); Sunbelt Constr. Corp., Inc. v. S & D Mech. Contractors, Inc., 668 S.W.2d 415, 418 (Tex.App.—Corpus Christi 1983, writ ref'd n.r.e.). We view the situation presented in this case as analogous to the rule just cited. All defendants (Relators) spoke with one voice to the trial court; they have not attempted, even in their petition to this court, to articulate any individual defenses.

      . During the course of this litigation, Chung filed for bankruptcy (case number 97-30438-S-ll; In re: John W. Chung, in the United States Bankruptcy Court, Eastern District of Texas, Sherman Division). We are further advised, in the Reply to the Real Party in Interest’s Response to Petition for Writ of Mandamus, p. 4, note 1, and in a subsequent letter from Relators' counsel, that Chung pleaded guilty to two counts of bankruptcy fraud on May 30, 2000, in cause number 4:00-CR-ll, United States v. Chung, in the United States District Court, Eastern District of Texas, Sherman Division.

      . Kueckelhan was originally a named defendant in Chung’s lawsuit. The latest pleadings shown in the record presented in connection with Relators’ petition do not show that she remains a defendant. Our limited record does not show by what means Kueckelhan was let out of the case.

      . Monetary sanctions should not ordinarily be used to dispose of litigation. If the imposition of monetary sanctions threatens a party’s continuation of litigation, appeal affords an adequate remedy only if payment of the sanctions is deferred until final judgment is rendered and the party has the opportunity to supersede the judgment and perfect his appeal. Braden v. Downey, 811 S.W.2d 922, 929 (Tex.1991). The record in the present case indicates that the order imposing sanctions specifically provided that their imposition was conditional, and even if finally assessed, payment would not be required until a final judgment was rendered in the case.

      . Compare this to the procedure utilized to prove damages in a default judgment proceeding. Tex.R.Civ.P. 243; Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 496 (Tex.1988).


author: TOM GRAY, Justice. BILL VANCE, Justice,

text:
    Carey Michael CRADDOCK, Appellant, v. The STATE of Texas, Appellee.
    No. 10-00-231-CR.
    Court of Appeals of Texas, Waco.
    Nov. 8, 2000.

      Baltazar Salazar, Houston, for appellant.
    John B. Holmes, Hams County Dist. Atty., Houston, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

TOM GRAY, Justice.

Carey Michael Craddock pled guilty to burglary of a habitation, and pursuant to a plea agreement, the trial court deferred an adjudication of guilt and placed him on community supervision for seven years. Four years later, the State filed a motion to adjudicate Craddock’s guilt and alleged two violations of his community supervision. After an uncontested hearing, the court adjudicated Craddock’s guilt and sentenced him to seven years in prison. Craddock filed a general notice of appeal. He has not filed a motion to amend his notice of appeal, and we have not given him the opportunity to do so. We dismiss the appeal for want of jurisdiction. Jurisdiction

Where a defendant pleads guilty or nolo contendere with the benefit of a plea bargain agreement and the punishment assessed does not exceed the agreed punishment, a defendant’s notice of appeal must comply with the extra-notice requirements of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure. Tex.R.App. 25.2(b)(3). In this situation, a general notice of appeal is insufficient to confer jurisdiction on a court of appeals. Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App.1994); Lyon v. State, 872 S.W.2d 782, 736 (Tex.Crim.App.1994) (both construing former appellate rule 40(b)(1)). This is also trae if a defendant bargained for and received deferred adjudication. Watson v. State, 924 S.W.2d 711, 714-715 (Tex.Crim.App.1996).

We have construed Rule 25.2(b)(3) in the same manner; that is, compliance with the rule is jurisdictional. See Tressler v. State, 986 S.W.2d 381 (Tex.App.—Waco 1999, no pet.). Other courts of appeals have also accepted this construction. See Robinson v. State, 24 S.W.3d 438 (Tex.App.—Houston [1st Dist.] 2000, no pet.); Sherman v. State, 12 S.W.3d 489 (Tex.App.—Dallas 1999, no pet.); Villanueva v. State, 977 S.W.2d 693 (Tex.App.—Fort Worth 1998, no pet.). Thus, if a notice of appeal does not comply with Rule 25.2(b)(3), we do not have jurisdiction over the appeal. Tressler, 986 S.W.2d at 382. So well established is the jurisdictional nature of the requirement of Rule 25.2(b)(3) that we ceased publishing cases dismissed for failure to comply with the rule. See e.g. Anderson v. State, No. 10-99-00192-CR (Tex.App.—Waco August 2, 2000) (not designated for publication); Steffy v. State, No. 10-98-00-265-CR (Tex.App.—Waco April 21, 1999) (not designated for publication).

Merits of the Case

Defendants have frequently attempted to bypass the specific extra-notice requirements by utilizing another rale to give the courts jurisdiction where it had not otherwise been properly invoked. Just as many times, the Court of Criminal Appeals has stated that a court of appeals cannot use another rule to create jurisdiction where none exists. Thus, the Court of Criminal Appeals has made it clear that the courts of appeals cannot use other rules such as the new Rule 2, former Rule 2(b) or former Rule 83 to consider the merits of an appeal where the notice of appeal was untimely. See Slaton v. State, 981 S.W.2d 208 (Tex.Crim.App.1998); Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996). The Court has also held that the courts of appeals cannot use former Rule 83 to permit an out of time amendment of a notice of appeal. Jones v. State, 796 S.W.2d 183 (Tex.Crim.App.1990).

In 1997, a provision was added to the new rules of appellate procedure that allows for amendments of a notice of appeal. Rule 25.2(d) provides:

An amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court at any time before the appellant’s brief is filed. The amended notice is subject to being struck for cause on the motion of any party affected by the amended notice. After the appellant’s brief is filed, the notice may be amended only on leave of the appellate court and on such terms as the court may prescribe.

Tex.R.App.P. 25.2(d). However, the Court of Criminal Appeals has recently construed this provision and reaffirmed that prior case law prevents a court of appeals from using another appellate rule to create jurisdiction where none existed. State v. Riewe, 13 S.W.3d 408, 413 (Tex.Crim.App.2000). The Court stated that it does not matter which rule a court of appeals tries to use, former rules 2(b) or 83 or the current rule 25.2(d); the court cannot create jurisdiction without a proper notice of appeal. Id. “The point is that, once jurisdiction is lost, the court of appeals lacks the power to invoke any rule to thereafter obtain jurisdiction.” Id. Although the Riewe appeal involved the State’s compliance with its own extra-notice requirements, it appears that the Court wanted to settle the entire issue by stating, “any amendments made pursuant to Rule 25.2(d) cannot be jurisdictional amendments.” Id. at 413-414. The Court has merely re-affirmed the method of invoking the jurisdiction of appellate courts in plea bargained cases; it has not abridged, modified, or enlarged a substantive right of the defendant. See eg. Villanueva, 977 S.W.2d at 696, n. 7.

Conclusion

Craddock’s general notice of appeal did not comply with Rule 25.2(b)(3). Even though Craddock has not requested permission to amend his notice of appeal, the time for perfecting his appeal has elapsed and this jurisdictional defect cannot now be corrected. See Riewe, 13 S.W.3d at 413-14. We acknowledge that we cannot utilize the procedure described in Tressler to allow amendment of a notice of appeal. Tressler, 986 S.W.2d at 382. Accordingly, we do not have jurisdiction over this appeal and dismiss it for want of jurisdiction.

Justice VANCE dissenting.

BILL VANCE, Justice,

dissenting.

In an attempt to appeal from a conviction which followed a plea bargain, Carey Craddock filed a general notice of appeal. We recognized that his notice is inadequate, and without giving him the opportunity to amend the notice, the majority dismisses his appeal for want of jurisdiction. Under the Texas Rules of Appellate Procedure, he should be given the opportunity to file an amended notice. Tex. R.App.P. 25.2(d), 44.3.

The two relevant rules, Rule 25.2 and Rule 44.3, provide, in their entirety:

25.2. Criminal Cases
(a) Perfection of Appeal In a criminal case, appeal is perfected by timely filing a notice of appeal. In a death-penalty case, however, it is unnecessary to file 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, and, if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01.
(3) But if the appeal is from a judgment rendered on the defendant’s plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:
(A) specify that the appeal is for a jurisdictional defect;
(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.
(c) Clerk’s Duties. The trial court clerk must note on the copies of the notice of appeal the case number and the date when the notice was filed. The clerk must then immediately send one copy to the clerk of the appropriate court of appeals and one copy to the State’s attorney.
(d) Amending the Notice. An amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court at any time before the appellant’s brief is filed. The amended notice is subject to being struck for cause on the motion of any party affected by the amended notice. After the appellant’s brief is filed, the notice may be amended only on leave of the appellate court and on such terms as the court may prescribe.
(e) Effect of Appeal. Once the record has been filed in the appellate court, all further proceedings in the trial court— except as provided otherwise by law or by these rules — will be suspended until the trial court receives the appellate-court mandate.
44.3. Defects in Procedure
A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.

Id.

Rather than follow the plain language of these Rules, the majority denies Craddock the opportunity to amend his notice and dismisses his appeal for want of jurisdiction on the basis of the Court of Criminal Appeals’ decision in State v. Riewe, 13 S.W.3d 408 (Tex.Crim.App.2000). I disagree with the majority’s reliance on Riewe because I have concluded that it does not apply to a defendant’s attempt to amend his notice of appeal under Rule 25.2(d). See id.; Tex.R.App.P. 25.2(d).

Riewe involves a State’s appeal under article 44.01 of the Code of Criminal Procedure. Tex.Code CRImProcAnn. art. 44.01 (Vernon Supp. Pamph.2000); Riewe, 13 S.W.3d at 409. The time limit for the State’s notice of appeal is established by the statutory provisions that confer the right to appeal on the State. Tex.Code CeimPROcAnn. art. 44.01(d); State v. Muller, 829 S.W.2d 805 (Tex.Crim.App.1992). In my view, the decision that the Rules of Appellate Procedure may not be used to modify the statutory time limit imposed on the State when it seeks to appeal a trial court’s ruling has nothing to do with the question of whether those Rules may be used to allow a defendant to amend a notice of appeal whose contents and time requirements are set by those same Rules. Tex.R.App.P. 25.2, 26.2. To the extent Riewe may discuss whether a defendant may amend his notice of appeal, that discussion is dicta. See Lester v. First American Bank, 866 S.W.2d 361, 363 (Tex.App.—Waco 1993, writ denied).

Furthermore, the result that the majority reaches is counter to the goal of judicial efficiency. Rather than disposing of Crad-dock’s appeal in one case, this decision ensures that it will take three proceedings and four courts to do so. This appeal is the first. In the second proceeding, Crad-dock will succeed on his habeas corpus application seeking an out-of-time appeal, which first must be filed in the trial court and then in the Court of Criminal Appeals. Tex.Code CrimPROcAnn. art. 11.07 (Vernon Supp.2000); see Ex parte Axel, 757 S.W.2d 369 (Tex.Crim.App.1988). His successful habeas corpus application will result in the fifing of the third proceeding, the actual out-of-time appeal, in all probability in one of the Houston Courts of Appeals.

We could avoid this litigation-multiplying effect by harmonizing the application of the Rules of Appellate Procedure in civil and criminal proceedings. In other contexts, the Court of Criminal Appeals has specifically looked to civil cases for guidance on appellate matters. See, e.g., Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000) (“Adoption of this complete standard allows us to remain true to one of the stated goals of Clewis, harmonization, when appropriate, of civil and criminal jurisprudence, and it recognizes the State’s burden at a criminal trial is proof beyond a reasonable doubt.”) (referring to Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996)); Awadelkariem v. State, 974 S.W.2d 721, 726-27 (Tex.Crim.App.1998). Under the Texas Supreme Court’s interpretation of the Texas Rules of Appellate Procedure, an appellant’s bona fide attempt to invoke the jurisdiction of the court of appeals is sufficient to establish the appellate court’s jurisdiction over the cause. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997); Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994). The same reasoning should be applied in criminal appeals.

Here, Craddock filed a general notice of appeal. Rule 44.3 specifically requires us to provide him the opportunity to correct the defect in his notice of appeal. Tex. R.App.P. 44.3. We should exercise our authority under Rule 25.2(d) and meet our duty under Rule 44.3, and give Craddock an opportunity to amend his notice.

Rule 25.2(d) was adopted less than two years ago. Id. 25.2(d). It appropriately restored the authority of a court of appeals to allow a defendant time to correct an otherwise timely notice of appeal. We should follow the Rules of Appellate Procedure in this case, not Riewe, and allow Craddock the opportunity to amend his notice of appeal. The majority’s application of Riewe to a defendant’s appeal “creates a split between criminal and civil jurisprudence without a good reason for doing so.” Awadelkariem, 974 S.W.2d at 726. In fact, this result flies in the face of a rule which, in the natural application of its plain language, would allow for the harmonization of the two procedures and which has effectively restored the authority of the court of appeals to allow a notice of appeal to be corrected after the expiration of the time for filing the notice. Tex. R.App.P. 25.2(d). Because the majority takes this unwise course under the authority of an inapplicable opinion, I respectfully dissent.

      . The issue before us, ultimately, is not statutory, unlike the issue in Riewe, which is explicitly based on an act of the Legislature. Before the Rules of Appellate Procedure were enacted there was no absolute statutory time limit on the filing of a defendant’s notice of appeal. See Act of June 1, 1981, 67th Leg ., R.S., ch. 291, § 127, 1981 Tex. Gen. Laws 761, 814-15, repealed by April 10, 1986 Order Adopting Amendments to Rules of Posttrial, Appellate and Review Procedure in Criminal Cases, 707-708 S.W.2d (Texas Cases) xxx, xxxv (amending article 44.08 of the Code of Criminal Procedure to allow fifteen days to file a notice of appeal after the overruling of a motion for new trial or, if no motion for new trial was filed, fifteen days after sentencing but also providing that "[f]or good cause shown, the court of appeals may permit the giving of notice of appeal after the expiration of such fifteen days”); Castillo v. State, 689 S.W.2d 443, 444-46 (Tex.Crim.App.1984). Thus, the absolute limit on the time in which a notice of appeal could be filed is found only in the Rules, not in the statutes which preceded the Rules. Because there were no absolute time limits on the court of appeals’ discretion in granting permission to file an out-of-time-appeal, arguably the Rules of Appellate Procedure, if the majority is right, restrict the substantive rights of defendants to seek an appeal, contrary to the enabling legislation under which the Rules were enacted. See Act of May 27, 1985, 69th Leg., R.S., ch. 685, § 1, Tex. Gen. Laws 2472 (authorizing the Court of Criminal Appeals to promulgate rules of posttrial and appellate procedure but denying it the authority to "abridge, enlarge, or modify the substantive rights of a litigant” by those rules); see also Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996); Jones v. State, 796 S.W.2d 183 (Tex.Crim.App.1990).

      . The authority to allow amendment of an otherwise timely notice of appeal would necessarily be included within the authority to allow the filing of a notice of appeal at any time "for good cause shown.”