dissenting from denial of request for en banc review.
The Panel Opinion acknowledges a split among the intermediate appellate courts concerning jurisdiction to consider jurisdictional challenges when a defendant files only a general notice of appeal from a conviction that results from a plea bargain. The Panel Opinion chooses to follow the San Antonio Court of Appeals, rather than the Dallas and Austin Courts of Appeals, but does not explain why. On such an important issue, we should explain the reasons why we choose one line of authority over another. For the following reasons, I do not believe appellant, Eunice Lopez, can appeal a jurisdictional defect.
Before 1977, former articles 813 (1925 Code) and 44.02 (1965 Code) allowed criminal defendants a general right to appeal anything: “A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.” See Act of May 27,1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws (vol.2) 317, 511; former article 813, C.C.P.1925. The 1997 Legislature added the following proviso to article 44.02:
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. This article in no way affects appeals pursuant to Article 44.17 of this chapter.
Act of May 23, 1977, 65th Leg., R.S., ch. 351,1977 Tex. Gen. Laws 940, 94(M1 (proviso emphasized).
Except for appeals from pre-trial motions, the proviso allowed no appeals without permission of the trial court. Thus, permission of the trial court was necessary to appeal even jurisdictional defects and voluntariness of the plea.
But the Court of Criminal Appeals has not interpreted the proviso according to its plain language. In both its case law and rule-making roles, the court has confused two issues: the limited scope of review, as established by the Legislature through the proviso, and the limited waiver of certain issues, as established by the Court of Criminal Appeals in Helms v. State, 484 S.W.2d 925 (Tex.Crim.App.1972). Under the Helms rule, a voluntary plea of guilty *931waived all non-jurisdietional defects that occurred before entry of the plea. Id. at 927.
The first confusion with the Helms rule occurred when the Court of Criminal Appeals promulgated former rule 40(b)(1) of the Texas Rules of Appellate Procedure. It is well-settled that, while the Legislature gives the court rule-making authority, the court may not enlarge, abridge, or otherwise modify the substantive rights of litigants. Tex Gov’t Code Ann. § 22.108(a) (Vernon 1988). Nevertheless, in promulgating former rule 40(b)(1), the court changed the limited scope of review under the proviso into a Helms-]Ike rule regarding the form of an appellant’s notice of appeal:
... but if the judgment was rendered upon his plea of guilty or nolo contende-re pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to the entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial.
Former Tex.R.App. P. 40(b)(1). Former rule 40(b)(1) created many problems that took years to sort out through case law that unfortunately demonstrates only haphazard allegiance to the Legislature’s mandate that the rules not modify litigants’ substantive rights. See, e.g., McLish v. State, 916 S.W.2d 27, 29 (Tex.App.—Houston [1st Dist.] 1995, pet. refd) (Taft, J., concurring) (noting an appellant’s loss of the proviso’s absolute right to appeal motions to suppress when notices failed to comply with the rule’s formal requirements).
Then, in Flowers v. State, the Court of Criminal Appeals held that voluntariness of the plea, like jurisdictional defects, could be raised by a defendant who had entered an agreed plea on the basis that the proviso maintained an implied predicate from the Helms rule that allowed appeal of vol-untariness and jurisdictional defects. Flowers v. State, 935 S.W.2d 131, 133 (Tex.Crim.App.1996). This holding effectively added, to the proviso, two additional matters that could be appealed without the permission of the trial court.
The right to appeal in criminal cases is determined solely by the Legislature. See Morris v. State, 749 S.W.2d 772, 774 (Tex.Crim.App.1986). Accordingly, the Court of Criminal Appeals had neither judicial-decision authority nor rule-making authority to enlarge the scope of appeal set by the Legislature in its proviso to article 44.02. See Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994). Not having obtained the permission of the trial court, appellant should have no right to appeal either jurisdictional matters or voluntariness.
But even if the Court of Criminal Appeals had the authority to make substantive changes in the rules, its recent rule change plainly requires a criminal appellant to state, in the notice of appeal, that he is raising a jurisdictional matter. See Tex.R.App. P. 25.2(b)(3); Trollinger v. State, 987 S.W.2d 166, 167 (Tex.App.—Dallas 1999, no pet.); Hernandez v. State, 986 S.W.2d 817, 819 (TexApp.—Austin 1999, pet. refd). The Court of Criminal Appeals has not hesitated to find no appellate jurisdiction where matters required to be set out in the notice of appeal were not set out. See Davis v. State, 870 S.W.2d 43, 46-47 (Tex.Crim.App.1994) (holding no jurisdiction to address motion to suppress).
As demonstrated, substantial arguments support our not allowing appellant to appeal a jurisdictional matter, whether or not the Court of Criminal Appeals may enact rules that differ substantially from the predecessor statute.
The apparent rationale of the Panel Opinion is that we may always reach juris*932dictional challenges. The fallacy of this rationale is that it presumes we have jurisdiction. But we are frequently precluded from addressing jurisdictional challenges, as when appellants have not complied with the controlling rules. For example, a criminal defendant who waits too long to file notice of appeal may not raise any issue on appeal, including jurisdictional issues. Flowers is admittedly an exception to the general rule. Were Flowers soundly decided or still viable, it would provide a basis for the Panel Opinion’s decision. Indeed, this Court found Flowers still viable in Davis v. State, 7 S.W.3d 695 (Tex. App. — Houston [1st Dist.] 1999, no pet.), which relied on Flowers to hold that volun-tariness could be raised despite a general notice of appeal, even after former rule 40(b)(1) was changed, apparently to disallow precisely this. See Davis, 7 S.W.3d at 696-697; cf. id. at 698-99 (Taft, J., dissenting).
Accordingly, I requested en banc review to afford an opportunity for the entire court to decide this important jurisdictional issue and to state our reasons for following a particular line of cases. To the denial of that request by a majority of this Court, I respectfully dissent.
Voting to deny the request for en banc review were Justices COHEN, MIRABAL, WILSON, HEDGES, and ANDELL. Voting to grant the request for en banc review were Chief Justice SCHNEIDER, and Justices O’CONNOR, TAFT, and NUCHIA.