concurring.
While I concur with the majority, reluctantly following the prevailing law in this *677state, I write to proclaim that the prevailing law is wrong!
In Davis v. State, 870 S.W.2d 43 (Tex.Crim.App.1994), the Court of Criminal Appeals addressed the issue of whether the appellate rule concerning notice of appeal impermissibly gave a defendant a greater scope of appeal than the Legislature intended. Id. at 45. The court stated that it had replaced the former proviso of Tex.Code CRIM.P.Ann. art. 44.02 (Vernon 1979 & Supp. 1995) with Tex.RApp.P. 40(b)(1). Davis, 870 S.W.2d at 45-46. It pointed out that the Legislature, in delegating authority to the Court of Criminal Appeals to promulgate a comprehensive body of appellate rules in criminal cases, expressly provided that these rules could not abridge, enlarge, or modify the substantive rights of a litigant. Id. at 46. The court recognized that a defendant’s legislatively granted right of appeal is a substantive right. Id. Finally, the court construed rule 40(b)(1) so that it conformed to the former proviso of article 44.02 thereby eliminating any possible conflict. See id.
The former proviso gave a defendant entering a plea of guilty pursuant to an agreement as to punishment the absolute right to appeal matters raised by written motion filed prior to trial:
[BJefore 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.
Tex.Code Crim.ProcAnn. art. 44.02 (Vernon 1979) (former proviso) (emphasis added).1
Rule 40(b)(1) added the requirement that the notice of appeal shall specify that the matters were raised and ruled upon pretrial:
[I]f the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a 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.
Tex.R.App.P. 40(b)(1) (emphasis added).
Prior to the decision of the Court of Criminal Appeals in Davis v. State, this Court had addressed the identical issue raised in Davis. Refusing to follow the courts of appeals which had upheld rule 40(b)(1) even though it enlarged the scope of a defendant’s appeal, this Court squarely held that rule 40(b)(1) impermissibly expanded the scope of a litigant’s appeal and, instead of applying rule 40(b)(1), we enforced the prior law under the former proviso to article 44.02. See Rhem v. State, 846 S.W.2d 870, 873-74 (Tex.App.—Houston [1st Dist.] 1992), aff'd, 873 S.W.2d 383 (Tex.Crim.App.1994).2
Contrary to the situation in Davis, there is no way to construe the rule 40(b)(1) requirement that “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” so as to conform to the former proviso of article 44.02, which had no such requirement. The Court of Criminal Appeals exceeded its rule-making authority when it crafted a rule of appellate procedure which abridged the substantive right of a defendant appealing a pretrial matter after entering an agreed plea. It has compounded the error by enforcing the rule, thereby denying appeals in situations where a defendant previously had an unfettered right to appeal. See, e.g., Lyon v. *678State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994).
It is up to the Court of Criminal Appeals to correct its own error. Until it does so, we are constrained to follow its error. The effect in the present case is to deny, or at least postpone, review of appellant’s point of error challenging the trial court’s ruling on appellant’s motion to suppress evidence. The Court of Criminal Appeals prevents us from providing a speedy resolution of appellant’s rightful appeal.
Principles of judicial restraint require that I be bound by precedent from the higher court, but they do not require that I be gagged. Protesting vigorously the failure of the Court of Criminal Appeals to provide the appellate rights which the Legislature intended, I concur for now in the dismissal of appellant’s appeal.
. Act of August 30, 1965, 59th Leg., R.S. ch. 722, 1965 Tex.Gen.Laws 317, 511, partially repealed by Act of August 26, 1985, 69th Leg. R.S., ch. 685, § 4, 1986 Tex.Gen.Laws 2472, 2473 (current version at TexR.App.P. 40(b)(1)).
. The Court of Criminal Appeals reached the same result relying upon the rationale of Davis rather than the reasoning of this court in Rhem.