dissenting.
I dissent. The primary purpose of Texas appellate courts is to decide appeals from trial courts and to cure errors that have deprived parties of a fair trial. See Jiles v. State, 751 S.W.2d 620 (Tex.App.—Houston [1st Dist.] 1988). The majority decision allows this Court, in this case, to avoid performing the job for which it was created. Nothing in the rules of appellate procedure or the case law of Texas compels this result.
Tex.R.App.P. 83, directs that an appeal shall not be 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. While appellant’s *585notice of appeal was filed one day after the 15 day grace period provided by Tex.R. App.P. 41(b)(1) and was not accompanied by a motion for extension of time to file same, such motion for extension was filed at the time stated by the majority.
I would hold that these documents were filed within a reasonable time and that they correct the irregularity of not timely filing the written notice of appeal.
I also dissent from the majority holding that appellant’s motion does not provide the basis of a reasonable explanation for the failure to file within the appropriate deadline.
In civil cases, our Supreme Court has defined “reasonably explaining” as any plausible statement of circumstances indicating that failure to file within the designated period was “not deliberate or intentional, but was the result of inadvertence, mistake or mischance,” following the standard in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.Comm’n App.1939, opinion adopted). Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977). This same definition should be applied in criminal cases.
I find the attorney’s explanation that he believed that he had thirty days, rather than fifteen, to give notice of appeal after his motion for new trial was overruled, is reasonable and indicates that his late filing was not intentional, but due to mistake. The late filing of the motion for extension of time again appears to be a result of counsel’s mistaken information about the timetable rather than of any conscious indifference on his part. See Craddock, 133 S.W.2d at 126. The majority holding in this case, along with the decision in Garcia v. Kastner Farms, Inc., 761 S.W.2d 444 (Tex.App.—Corpus Christi, 1988, no writ) (not yet reported), establishes a policy determination of this Court that Tex.R.App.P. 41 should be interpreted so that an attorney’s lack of knowledge of the law does not constitute a reasonable explanation, but his mistake in computing time, or his misapplication of the law, does constitute a reasonable explanation. This policy is applied equally to criminal and civil cases.
In a civil case, this policy was specifically rejected by the 5th Court of Appeals in the recent case of Heritage Life Insurance Co. v. Heritage Group Holding Corp., 751 S.W.2d 229, 232 (Tex.App.—Dallas 1988, writ denied) where it states:
We view the Corpus Christi Court [in Home Insurance Co. v. Espinoza, 644 S.W.2d 44 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.) ] as following the “reasonable diligence” standard. This standard was rejected by Justice Guit-tard in his dissenting opinion in Sloan v. Passman, 538 S.W.2d 1, 1 (Tex.Civ.App.—Dallas 1976) (Guittard, J., dissenting, approved in United States Fire Insurance Co. v. Stricklin, 547 S.W.2d 338 (Tex.Civ.App.—Dallas 1977, no writ)). Justice Guittard followed the “Craddock” standard of inadvertence, mistake, or mischance. This same language was used by the Texas Supreme Court in Meshwert, 549 S.W.2d at 384. Under [Meshwert ], Stricklin, and Sloan, the “reasonable explanation” required by Rule 41(a)(2) focuses on a lack of deliberate or intentional failure to comply. See Meshwert, 549 S.W.2d at 384. Anything short of deliberate or intentional noncompliance falls within the area of inadvertence, mistake, or mischance. Consequently, we decline to follow Espinoza.
Additionally, I perceive a difference in applying Rule 41 in a criminal case and in a civil case. A court may not modify a person’s constitutional rights by using its rule-making authority. See Picard v. State, 631 S.W.2d 761, 763 (Tex.App.—Beaumont 1981, no pet.); see also King v. Dupuis, 649 S.W.2d 387, 389 (Tex.App.—Austin 1983, no writ). The Sixth Amendment guarantees criminal defendants effective assistance of counsel, whether counsel is employed or court-appointed. Cuyler v. Sullivan, 446 U.S. 335, 344-345, 100 S.Ct. 1708, 1716-1717, 64 L.Ed.2d 333 (1980); Weathersby v. State, 627 S.W.2d 729, 730 (Tex.Crim.App.1982).
Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985) teach*586es that in a criminal case a first appeal as of right is not adjudicated in accord with due process if the appellant does not have the effective assistance of an attorney. A State may not, consistent with due process, extinguish the right to appeal because of ineffective assistance of counsel. See Ev-itts, 469 U.S. at 396, 105 S.Ct. at 836. An appeal’s purpose is to determine whether an individual has been lawfully convicted. The sufficiency of the evidence will not be considered except on direct appeal. See Willis v. State, 626 S.W.2d 500, 504 (Tex. Crim.App.1979); Ex parte Ash, 514 S.W.2d 762, 763 (Tex.Crim.App.1974). The availability of a postconviction collateral attack by habeas corpus because of incompetent counsel is an inadequate substitute for a proper appeal.
The constitutional minimum for effective assistance of counsel on appeal is that the attorney at least file a brief. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967); Yates v. State, 557 S.W.2d 115, 117 (Tex.Crim.App.1977); Morgan v. State, 646 S.W.2d 603, 605 (Tex.App.—San Antonio 1983, no pet.); Picard, 631 S.W.2d at 763. It has been held that a court of appeals was not at liberty to dismiss an appeal or affirm a conviction summarily because counsel failed to timely file a brief. Hubbard v. State, 649 S.W.2d 167, 168 (Tex.App.—Dallas 1983, no pet.). In that case, an attorney’s conclusory allegations of a heavy case load were not sufficient, and counsel was directed to file a brief and to state facts from which court could determine whether he should be replaced. Hubbard, 649 S.W.2d at 167. In Picard, the Beaumont Court of Appeals vacated an order denying extension of time to file a brief because of constitutional rights of the client. Id. 631 S.W.2d at 764.
In Ward v. State, 740 S.W.2d 794, 799 (Tex.Crim.App.1987), the Court discussed the adequacy of appellate representation. The Court held the defendant had been denied effective assistance of counsel on appeal under the Federal Constitution and under Tex. Const, art. I, § 10. Comparing the case with Evitts, the Court stated that the failure of counsel in each case to comply with a simple procedural rule operated to deny appellant an opportunity at a meaningful time and in a meaningful manner to present his appeal. The failure to file a statement of facts had rendered any review of the appeal a “meaningless ritual.” Ward, 740 S.W.2d at 800.
In Vicknair v. State, 702 S.W.2d 304, 307 (Tex.App.—Houston [1st Dist.] 1985, pet. ref’d), the Court granted an out-of-time appeal because counsel failed to designate a statement of facts allowing meaningful review of the evidence at a suppression hearing.
In Shead v. State, 711 S.W.2d 345, 347-48 (Tex.App.—Dallas 1986, no pet.), the Court abated an appeal for ineffective assistance of counsel when counsel failed to timely designate a statement of facts necessary for a meaningful appeal.
If due process demands that counsel file an appellate brief, surely it is violated when counsel fails to obtain any appellate review when a client has relied on him to do so.
Jiles v. State, 751 S.W.2d 620 (Tex.App.—Houston [1st Dist.] 1988) held that the requirement of a written notice of appeal was satisfied as of the date appellant’s notice of appeal was reduced to writing by the District Clerk. This case provides an excellent and thorough analysis of the discretion and duties of Courts of Appeals in this area, as well as the policy considerations with relation to assistance of counsel and the importance of ending litigation with finality.
I believe the interpretation announced in Heritage Life Insurance Co. should be applied in interpreting Tex.R.App.P. 41 and, with respect to criminal cases, such interpretation is moré consistent with due process.
Apart and aside from the majority’s interpretation and application of Rule 41(b)(1) of the Rules of Appellate Procedure, and the application of Rule 83, this Court has the authority to suspend the requirements of an appellate rule under Rule 2(b) in criminal cases. Even though this Court’s opinion in Garcia v. Kastner Farms, Inc. *587states, in my belief, a too strict interpretation of Rule 41(a)(2) in civil cases, Rule 2(b) allows this Court discretion in its applicability in criminal cases. That discretion to suspend Rule 41(b)(1) should be utilized.
I would grant appellant’s motions rather than dismissing the appeal.
DORSEY, J., joins.