dissenting.
I respectfully dissent.
Tex.R.App.P. 2(b) states in pertinent part:
Suspension of Rules in Criminal Matters Except as otherwise provided in these rules, in the cause shown, a court of *832appeals or the Court of Criminal Appeals may suspend requirements and provisions of any rule in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.
In finding that appellant’s motion for extension of time to file a statement of facts should be denied, the majority chooses to ignore the authority granted it by the foregoing rule. The rationale given is that Rule 2(b) should not be “applied so broadly” that it obliterates the specific requirements of Tex.R.App.P. 54(c). I would submit that the express purpose of Rule 2(b) is to obviate the requirements of an appellate rule when such requirements operate to deny a defendant a meaningful appeal because of the inadvertence of his counsel.
Tex.R.App.P. 54(c) provides that an extension of time may be granted for late filing of a statement of facts if a motion reasonably explaining the need therefor is filed with the court of appeals within 15 days of the last date for filing the record. In civil cases, this rule must be strictly construed; where a party to a civil action fails to comply with the 15-day deadline, an appellate court has no authority to consider the party’s motion for extension of time. B.D. Click Co., Inc. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex.1982). In criminal cases, however, public policy demands a more liberal interpretation of the appellate rules in order to protect a defendant’s right to a meaningful appeal.
It is well settled that a criminal defendant has a right to an appeal which amounts to more than a meaningless ritual. Evitts v. Lucey, 469 U.S. 387, 394-95, 105 S.Ct. 830, 834-36, 83 L.Ed.2d 821 (1985); Ward v. State, 740 S.W.2d 794, 800 (Tex.Crim.App.1987). It is also clear that counsel’s failure to comply with the requirements of Appellate Rule 54(c), and the resulting absence of a statement of facts, severely limits this court’s ability to carry out its duty of reviewing the record for determination of whether reversible error exists. Ward, 740 S.W.2d at 800. The effect of this imposed limitation is to render appellant’s appeal a “meaningless ritual.” Id.
I note that the statement of facts in this case was received by the clerk of this court one day late, but the motion requesting an extension of time was not received within 15 days after the due date of the statement of facts. The violation of two rules, 54(b) (the statement of facts to be filed within 60 days) and 54(c) (motion for extension of time to be filed within 15 days after deadline with a “reasonable explanation”) causes the majority to refuse to file, and thereby consider, appellant’s statement of facts that the clerk has in hand. I find this result to be unreasonable and unnecessary.
As pointed out by Justice Seerden in his dissents in De La Garza v. State, 763 S.W.2d 62 (Tex.App.—Corpus Christi, 1988, no pet.) and Gomez v. State, 763 S.W.2d 583 (Tex.App.—Corpus Christi, 1988, no pet.) the purpose of an appeal is to determine whether a defendant has been lawfully convicted. Without a statement of facts, we cannot properly review points on trial error and sufficiency of the evidence, and that timely review is lost to appellant. Our review of sufficiency questions should not be precluded by a rejection of the filing of the statement of facts.
Furthermore, I believe Tex.R.App.P. 83 gives this Court authority to accept appellant’s late-filed statement of facts. Rule 83 states:
A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities, in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities provided the court may make no enlargement of the time for filing the transcript and statement of facts except pursuant to paragraph (c) of Rule 54 and except that in criminal cases late filing of the transcript or statement of facts may be permitted on a showing that otherwise the appellant may be deprived of effective assistance of counsel, (emphasis added).
In Evitts v. Lucey, the United States Supreme Court held that counsel’s failure
*833to file a statement of facts constituted a lack of effective assistance of counsel on appeal. The Court noted, “counsel’s failure was particularly egregious in that it essentially waived respondent’s opportunity to make a case on the merits; it is difficult to distinguish respondent’s situation from that of someone who had no counsel at all.” Evitts, 469 U.S. at 394, fn. 6, 105 S.Ct. at 835, fn. 6.
Here, appellant did not specifically raise the issue of effective assistance of counsel in his brief. However, I would hold that the record in this case, which clearly evidences a failure by appellant’s attorney to comply with the appellate timetable, speaks for itself. We should not deny appellant a meaningful, timely appeal simply because he does not have the effective assistance of counsel.
Rather than deny the filing of the statement and wait for appellant to request habeas corpus relief on the basis of ineffective assistance of counsel, I would, in the interest of judicial economy, invoke the powers vested by Tex.R.App.P. 2(b), grant appellant’s motion, and offer him an immediate opportunity at a meaningful appeal.
SEERDEN, J., joining in dissent.