dissenting.
I first point out that although I continue to subscribe to the view that I set out in the dissenting opinion I filed in Childress v. State, 784 S.W.2d 361 (Tex.Cr.App.1990), I momentarily concede defeat to the majority’s holding that V.T.C.A., Penal Code § 12.42 can be used to enhance a criminal offense that is set out in, not the Penal Code of this State, but, instead, the civil statutes of this State.
I file this dissenting opinion to express my disagreement with the majority’s holding that the court of appeals had no jurisdiction to accept Gene Autry Jones’, henceforth appellant, amended notice of appeal, which amendment shows on its face that the defect that existed in appellant’s original notice of appeal has been cured.1 If one carefully reads all of this Court’s 7-2 decision of Miles v. State, 780 S.W.2d 215 (Tex.Cr.App.1989), especially footnote 2 found on page 216, I believe he will conclude as I have done that today’s majority opinion, which does not even mention that case, expressly conflicts with that opinion.
The record of this cause reflects that this case was disposed of in the trial court pursuant to a plea bargain agreement. In exchange for a plea of guilty from appellant, and pleas of true to the enhancement allegations of the indictment, the State agreed to recommend to the trial judge the *188sentence of 25 years’ confinement in what is now the Texas Department of Criminal Justice, Institutional Division. The trial judge heard arguments on appellant’s motion to quash the enhancement allegations of the indictment in this cause, and overruled same. Thereafter, the trial judge stated into the record, inter alia, that “except as to pre-trial motions, which have been made here, or with permission of the Court, there would be no appeal,” and accepted appellant’s plea of guilty and pleas of true. The trial judge assessed appellant’s punishment at 25 years’ confinement in what is now the Texas Department of Criminal Justice, Institutional Division.
Thereafter, appellant gave timely written notice of appeal, but same was defective because it failed to set out therein that the trial judge had given appellant permission to appeal his ruling on appellant’s motion to quash the indictment. Thus, as a matter of law, counsel was ineffective in the giving of the written notice of appeal, and under this Court’s many, many cases appellant will in the future be granted an out-of-time appeal. Thus, this is another one of those “pay me now or pay me later” cases. See and compare Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), regarding counsel being ineffective for failure to comply with a procedural rule of law that pertains to appeals.
The State, in its appellate brief on direct appeal, notwithstanding that the record is perfectly clear that everyone, the trial judge, the prosecuting attorney, appellant, and his attorney, was satisfied that appellant could appeal the trial judge’s ruling on appellant’s motion to quash the indictment, argued that although appellant had actually given timely written notice of appeal, such was defective because it did not contain a statement therein that the trial judge had given appellant permission to appeal his ruling on appellant’s motion to quash the indictment, thus causing the court of appeals to lack jurisdiction over the case. The defect did not go to jurisdiction; it went to a failure to comply with a procedural rule of law. It should therefore be obvious to almost anyone that attempting to take advantage of a “technicality” in the law is not just reserved for defendants.
The record makes it obvious that after receiving a copy of the State’s brief, appellant’s counsel then became aware of the omission in the original notice of appeal, after which he filed an amended notice of appeal, in which he set out the “magic” words of Rule 40(b)(1).
On direct appeal, again given the facts of this cause, in hypertechnical fashion, the State argued that the court of appeals did not have jurisdiction over appellant’s appeal because of the above defect in the original notice of appeal. The Third Court of Appeals, however, in its opinion of Jones v. State, 762 S.W.2d 330 (Tex.App.-Austin 1988), and relying upon Rule 83, Tex.R. App.Pro., rejected the State’s contention. It ruled: “The appeal is properly before this Court.” The court of appeals also held: “Rule 83 may be employed to correct a defect in the written notice of appeal, but cannot and should not be used to excuse the failure to file any notice whatsoever.” Thus, finding that appellant had timely and actually given notice of appeal, the court of appeals ruled that although appellant’s original notice of appeal was defective because it did not state therein that the trial judge had granted appellant permission to appeal the overruling of his pretrial motion to quash the enhancement allegations of the indictment, the defect was cured pursuant to Rule 83, which provides in part: “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.”
Today, a majority of this court holds that the terms of Rule 40(b)(1) are jurisdictional, and any defect existing in the original notice of appeal given pursuant to Rule 40(b)(1) cannot be cured under Rule 83. This decision easily conflicts with this Court’s decision of Miles v. State, supra.
In Shute v. State, 744 S.W.2d 96, 97, fn. 1 (Tex.Cr.App.1988), in the concurring opinion that he filed therein, Judge Clinton pointed out that those individuals who *189drafted the proposed rules of appellate procedure “made a conscious decision to conform criminal appellate procedure to that in place on the civil side was deemed preferable or required by some criminal law aspect....” Therefore, from a practical standpoint if nothing else, the “civil law” closely resembles a “bell cow,” with the “criminal law” following the “bell cow” wherever she goes. However, and contrary to the court of appeals, which held that Rule 88 “may be employed to correct a defect in the written notice of appeal ... [which] view is in accord with the practice under former Tex.R.Civ.P. 437, from which Rule 83 is derived,” this Court, without explaining why, balks and refuses to follow the “civil law bell cow" in this cause. Also see and compare Inpetco, Inc. v. Texas American Bank/Houston, 729 S.W.2d 300 (Tex.1987). I point out that this Court ruled against the defendant in Shute the first time around. However, in an Art. 11.07, Y.A.C.C.P., proceeding, this Court, in an unpublished opinion, see Ex parte Shute, No. 70,203, June 15, 1988, ordered that Shute be granted an out-of-time appeal.
I pause to ask the majority of this Court: If the omission in the original notice of appeal caused the court of appeals to lack jurisdiction over the appeal, then why on earth is this Court wasting its precious time writing on a non-issue? Has the majority opinion also repealed Rule 2(b), Tex. R.App.Pro., which provides that either this Court or a court of appeals may on its own motion suspend any rule of appellate procedure in a given case? Also see Francis v. State, 774 S.W.2d 768 (Tex.App.-Corpus Christi 1989), and Jiles v. State, 751 S.W.2d 620 (Tex.App.-Houston [1st Dist.] 1988).
Amazingly, the majority opinion completely ignores this Court’s recent 7-2 opinion of Miles v. State, supra, in which this Court expressly held: “Tex.R.App.Pro. 83 applies to defects in notice of appeal but does not apply when no notice of appeal is ever given.” Fn. 2, at page 216. Why is such not applicable to this cause?
In the dissenting opinion that he filed in Gomez v. State, 763 S.W.2d 583, 585, 586 (Tex.App.-Corpus Christi 1988), Justice Seerden correctly pointed out the following: “A court may not modify a person’s constitutional rights by using its rule making authority ... A State may not, consistent with due process, extinguish the right to appeal because of ineffective assistance of counsel ... An appeal’s purpose is to determine whether an individual has been lawfully convicted....”
Chief Justice Brown of the Fourteenth Court of Appeals pointed out in Jackson v. State, 775 S.W.2d 422, 423 (Tex.App.-Houston [14th Dist.] 1989), that the cases by the courts of appeals are (in 1989) probably evenly split over whether the defect of omission is procedural or jurisdictional. I have found nothing to indicate there has since been a change in the figures. The major change that I have found in my research is that the courts of appeals which have ruled that the defect of omission is jurisdictional did not have the benefit of this Court’s decision of Miles v. State, supra, especially footnote 2 therein. Also see Justice Boyd’s concurring opinion that he filed in the Amarillo Court of Appeals’ decision in Miles v. State, 781 S.W.2d 608 (Tex.App.-Amarillo 1989).
In deciding whether Rule 41(b)(1) is procedural or jurisdictional, shouldn’t emphasis be placed on whether or not any notice of appeal at all was given? See footnote 2 in this Court’s opinion of Miles v. State, supra. In that regard, also see Rule 40(b)(1), Tex.R.App.Pro., which provides in part: “Such notice [of appeal] shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order....”
It should not be questioned that “Rule 83 is the appropriate procedural vehicle to employ when dealing with procedural ‘miscues’ and obvious claims of ineffective assistance of counsel of the Evitts variety.” Miles v. State, 781 S.W.2d 608, 609 (Tex. App.-Amarillo 1989). Furthermore, “[t]his is not a case where no effort has been made to comply with the prescribed procedure, although a mistake was obviously made by appellant’s attorney either in interpretation or application of that proce*190dure. The effect of the application of Rule 83 in this case is not to grant an out-of-time appeal, but is simply to permit the orderly and proper completion of an appeal duly invoked.” Miles v. State, Id., at 610 (Justice Boyd’s concurring opinion).
What the majority opinion does in this cause actually supports what I stated in the dissenting opinion I filed in Shute v. State, supra, that when it comes.to mixing criminal appellate law with civil appellate law, Rudyard Kipling probably said it best in “The Ballad of East and West”: “Oh, East is East, and West is West, and never the twain shall meet.” It also supports what was said about this Court over 75 years ago: The Texas Court of Criminal Appeals has “an almost superstitious regard for technicalities of a kind which belong to the rubbish of Noah’s ark, rather than to the jurisprudence of an enlightened age and country. The Texas Court of Criminal Appeals enjoys the distinction, we believe, of being one of the foremost worshipers among American appellate courts of the technicality fetish, but we are glad to know that the courts of many states refuse to follow such decisions as precedents.” 2 Journal of American Institute of Criminal Law & Criminology 179-180. Please note that the above words were neither written nor spoken in 1990, but were written in 1912. I believe that this Court should strive to improve its image, even after existing for almost 100 years.
Therefore, I respectfully dissent to the majority opinion’s holding that the defect of omission in the original notice of appeal is jurisdictional and not procedural, and cannot be cured pursuant to Rule 83. In doing so, I acknowledge the words of wisdom, many of which I have adopted in this dissenting opinion, that Justice Cohen uttered for the First Court of Appeals in Jiles v. State, supra, which, by refusing the State’s petition for discretionary review in that cause, this Court implicitly also approved what Justice Cohen stated.
. Texas appellate courts exist in order to cure errors that have deprived either of the parties to a lawsuit of a fair trial. They do this by deciding appeals. Therefore, appellate courts must be open to the parties so that trial court errors may be corrected or cured. It is now without question that the courts of appeals have the jurisdiction to hear ordinary criminal cases on direct appeal to those courts. See Article V, § 6, Texas Constitution. Also see Art. 4.03, V.A. C.C.P. It is also true that "[o]nce jurisdiction of an appellate court is invoked, exercise of it’s reviewing functions is limited only by it’s own discretion or a valid restrictive statute.” Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983).
I also point out that effective September 1, 1986, when this Court adopted Texas Rules of Appellate Procedure, the Court repealed the proviso of Art. 44.02, V.A.C.C.P., by operation of law under former Art. 181 le, V.A.C.S. (§§ 1-7 since transferred to Government Code and repealed Acts 1985, 70th Leg., ch. 148, § 2.04(b), p. 543). The proviso part of Art. 44.02, supra, is now found in Rule 40(b)(1), Tex.R.App.Proc. Also see Padgett v. State, 764 S.W.2d 239 (Tex.Cr.App.1989)