concurring.
I concur in the conclusion that relief should be granted because application of the amended version of Article 44.02, V.A. C.C.P., to petitioner’s cases would violate the Texas Constitution’s prohibition against ex post facto laws (Art. I, Sec. 16). I do so, however, on different reasoning than that expressed in Presiding Judge Onion’s opinion.
Article 44.02, V.A.C.C.P., as amended effective August 29, 1977, provides:
“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.” (Emphasis added.)
Judgments in petitioner’s cases were entered August 5, 1977, prior to the effective date of the amendment to Art. 44.02, supra. The process of applying the new statute, under the emphasized language above (and other conditions in the statute) of necessity requires a consideration of pre-trial events in the judicial process. For petitioner’s cases, this means application of the amended statute to him requires an examination of judicial events prior to August 5, 1977. Application of the statute, by its very terms, reaches to earlier judicial events than any notice of appeal and thus the issue here is not determined by the date of that event. To allow application of this statute to these cases would violate the prohibition against ex post facto laws in that events in the continuous judicial process occurring prior to its effective date would be determinative in the process of its application.
On this basis I concur in the order granting relief.