TEX.R.APP.P. 40(b)(1) in the governing, paramount text provides: "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." The rule is written in the disjunctive using the significant word "or". Appellant's timely notice of appeal specifically sets out that his appeal is based on his motion to suppress evidence only. The notice of appeal requirement is satisfied. The trial court also granted permission for the appeal. The record is distinguishable from Jones v. State, 796 S.W.2d 183 (Tex.Crim.App. 1990). In Jones the language was simply:
"Now comes R.J.G., attorney for Gene Autry Jones and hereby gives notice of appeal in the above case. Defendant requests the Court order a transcript of this proceeding, as defendant is too poor to pay for said transcript."
In Jones the notice of appeal was broad, unrestricted and general. Appellant's notice of appeal is meaningfully and crucially different. The State concedes that the hearing on the motion to suppress evidence was conducted before appellant entered his plea of guilty. The guilty plea was based on a plea bargain which was honored by the trial court. The record unquestionably contains a written motion to suppress evidence. In appellant's notice of appeal he specifically refers to his motion to suppress evidence in those exact words.
As I understand the record in a very realistic sense, the trial court gave the appellant permission to appeal twice.
THE COURT: So he has permission to appeal. I don't think I have to give him permission.
[PROSECUTING ATTORNEY]: He [appellant] did not agree to waive his appeal. I think it is up to the Court as to whether or not at this point in time, whether he can appeal.
Then the record reflects that the prosecuting attorney affirmatively stated to the trial court that the only agreement between the defendant and the State was that appellant would not waive appeal.
In the record:
THE COURT: You are giving notice of appeal at this time?
MR. REYES: Yes, Your Honor.
THE COURT: Let the record reflect the defendant has given written notice of appeal to appeal the suppression hearing that was had in this court, March 9 and 10th. That notice of appeal will be received and filed by the Court. Mr. Reyes will represent the defendant on appeal?
MR. REYES: Yes, sir.
THE COURT: Permission is granted.
Under this record I certainly cannot hold that appellant's counsel(s) were not as a matter of law ineffective in giving the notice of appeal. The Honorable Frumencio Reyes, Jr. and the Honorable Thomas R. Rodriguez were effective counsel in this regard.
The State vehemently contends that the hearing on the motion to suppress was not completed. Thus, appellant failed to obtain an explicit adverse ruling required by TEX.R.APP.P. 52(a). Query: Should not this appeal be abated to await an explicit ruling?
Since Jones, supra, has not been overruled I am constrained to concur in the results reached by the Chief Justice.