concurring.
Appellant’s petition for discretionary review implicates certain “new” rules. Texas Rules of Appellate Procedure became effective September 1, 1986, and the instant oral notice of appeal was given September 30, 1986. Presented by his sole ground of review is an issue we determined *98warranted review pursuant to Tex.R.App.Pro. Rule 200(c)(4), viz:
“The Court of Appeals erred by holding that TRAP 40(b)(1) mandates that written notice of appeal be filed by appellant or his counsel personally in the face of a document in the transcript, filed by the clerk, reflecting that written notice of appeal was indeed given.”
Such is an important question, and that the opinion of this Court actually answers it demonstrates that our grant of review was most topical; for reasons about to be given I agree the answer is correct.
Practically from the beginning in this jurisdiction, that a defendant must take the initiative to make known his intent and purpose to appeal has always been the rule. See Lawrence v. The State, 14 Tex. 432 (1855):
“[T]he party aggrieved by the decision of the [trial] court ... must in some way manifest his determination not to abide the decision, but to invoke a revision of the judgment by the appellate court; that is, he must appeal, and that he has done so must appear by the record to enable this court to revise the judgment of the District court in a criminal case.”
Within two years thereafter the Legislature adopted its first code of criminal procedure, and article 726 thereof prescribed how an appeal was to be initiated. That statute, soon held “mandatory and imperative,” required an appeal be taken “by giving notice thereof in open court, and having the same entered of record.” See, e.g. Long v. The State, 3 Tex.App. 322 (Ct.App.1877), and prior Supreme Court cases therein cited; see also Lorance v. State, 20 S.W. 361 (Tex.Cr.App.1892). Though revised in 1965 and again in 1981, former article 44.08, C.C.P., still permitted notice of appeal to be given “orally in open court,” while providing an alternative, viz: “in writing and filed in duplicate with the clerk.” Common custom and practice opted for oral notice of appeal. See McCormick & Blackwell, Texas Criminal Forms and Trial Manual § 79.05, 8 Texas Practice 189. Whatever its prescribed form, the Court has always held compliance with the applicable statute is jurisdictional. See decisions annotated under former article 44.08, at nos. 35-39.
Then along came the “new” rules of appellate procedure, particularly Rules 40(b)(1) and 41(b)(1) which are our concern today.1 Rule 40(b)(1) is said to have been “based on CCP Art. 44.08 with some modifications and deletions,” Proposed Integrated Code, 48 Tex.B.J. 144, at 153 (Comment to proposed rule 20). One main deletion was that notice of appeal “may be given orally in open court.”2
Given that the goal of the new rules of appellate procedure is uniformity and the framers deliberately deleted the oral notice of appeal in favor of a written notice such as then required by Tex.R.Civ.Pro. 356(c), we may look to the civil side for guidance in resolving the issue presented in the instant cause.
*99Germane civil rules went through much the same metamorphosis. See Texas Animal Health Commission v. Nunley, 598 S.W.2d 233 (Tex.1980), which is squarely on point, viz:
“Rule 354(c) requires that appellants, not required to file appeal bonds, ‘file a notice of appeal which shall be filed with the clerk.’ Before January 1, 1976, Rule 353 allowed a notice of appeal to be made ‘in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute[s] of the Court.’ The Commission contends this is still the rule.... The rules were changed by removing the above language in Rule 353 and amending Rule 354 to require the notice of appeal to be filed separately with the clerk. Attempting to provide notice of appeal in the manner previously authorized does not comply with Rule 354(c).’’
Id., at 234 (my emphasis).3
Accordingly, the Supreme Court held that “Rule 354(c) requires the filing of a separate notice of appeal with the clerk,” and because the Commission had not done so, dismissed its appeal for want of jurisdiction. Ibid. Thus, the opinion below and its order are correct.4
For the reasons given, then, I concur with essential conclusions of the Court and, therefore, join its opinion and judgment.
i. The purpose and objective of “intergrating” rules of appellate procedure was to have them uniformly applicable both to civil and criminal appellate practice. In drafting proposed rules framers made a conscious decision to conform criminal appellate procedure to that in place on the civil side, tracking the civil rule unless the criminal rule was deemed preferable or required by some criminal law aspect. See generally, Guittard, Proposed Uniform Rules of Appellate Procedure, 48 Tex.B.J. 24 (Jan.1985), and Glascow, Appellate Procedure: An Integrated Code, 48 Tex.BJ. 142 (Feb.1985).
On the civil side an appeal is perfected by timely filing a cost bond or affidavit in lieu thereof or, if bond is not required, by filing a written notice of appeal with clerk of court. See former rules 354, 355, 356 and 363, Tex.R.Civ.App. On the criminal side a cost bond was not required, so framers went with a written notice of appeal as the closest parallel manner of perfecting an appeal in a criminal case.
Also under Tex.R.App.Pro. 41 ordinarily an appeal is perfected when the requisite paper is filed within thirty days after some significant event terminating trial process: on civil side, signing of judgment; on criminal side, imposition or suspension of sentence in open court. When there is a motion for new trial, the time for filing is within ninety days after the respective event. Thus, as they desired and proposed, the framers sought to establish a common beginning for the appellate timetable on both sides. Guittard, op cit., supra, at 25.
. Rule 40(b) is described as "a new provision for criminal cases,” id., at 154 (Comment to proposed rule 21).
. Note that after the 1980 opinion in Texas Animal Health Commission, supra, the Supreme Court revised and relocated some related rules. For example, content of former rule 354(c) was moved to rule 356(c), and is now found in Tex.R.App.Pro.Rule 40(a)(2).
. Kipling’s Ballad aside, in the first paragraph of his dissenting opinion with manifest delight my Brother Teague quotes from a footnote in a June 26, 1985 dissenting opinion of Presiding Judge Onion to the effect the “new procedure" in giving notice of appeal caused “confusion as well as questions of jurisdiction.” Then in the next paragraph Judge Teague declares that in adopting rules of appellate procedure “there should always be public hearings, and the best place for this to occur is in the Legislature of this State.” The exquisite irony in the matter is that the “new procedure” critiqued by Presiding Judge Onion was that prescribed in former article 44.08, V.A.C.C.P., enacted by the Legislature in 1981 after much research and study and just such public hearings!
When chaff of poetry, speech, unpublished opinion and past characterizations of the Court and its rules are threshed out of his dissenting opinion, the essence remaining is a notion that “substantial compliance” with Tex.R.App.Pro. Rule 40(b)(1) should suffice. Thus he finds it “clear” that counsel for appellant "relied upon the written 'Notice of Appeal’ that was filed by the clerk of the court.” At 102. Yet, the penultimate entry in writing on the docket sheets attached by Judge Teague to his dissenting opinion as Appendix “C” reads:
"Written notice of appeal to follow with permission of the Court."
It did not follow, of course.
The form completed and signed by a deputy district clerk, Appendix “A”, is a memorial, inter alia, of the fact that appellant "orally gave notice of appeal,” such as contemplated by former article 44.08(a), supra, vfc "If notice is given orally in open court, the clerk shall in duplicate reduce the same to writing.” Those provisions were repealed September 1, 1986, when Texas Rules of Appellate Procedure became effective.