
    Brian Denard DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 05-91-01198-CR.
    Court of Appeals of Texas, Dallas.
    May 5, 1992.
    
      Fred Tinsley, Dallas, for appellant.
    Jeffrey B. Keck, Dallas, for appellee.
    Before BAKER, KINKEADE and WIGGINS, JJ.
   OPINION

BAKER, Justice.

Brian Denard Davis contends the trial court abused its discretion when it denied him a hearing on his motion for new trial. We find appellant waived an evidentiary hearing on his motion for new trial. We overrule his print of error. We affirm the trial court’s judgment.

PROCEDURAL BACKGROUND

The State charged appellant with theft of property of $750 or less. The State enhanced the charge with two prior theft convictions. Appellant waived a jury trial and pleaded guilty to the court. The trial court found appellant guilty. The court assessed punishment according to appellant’s plea bargain agreement.

Appellant filed a pleading entitled “Defendant’s Pleadings on Appeal.” This pleading asked the trial court to grant a new trial on grounds of ineffective assistance of counsel, imprisonment for debt, and newly discovered evidence. Appellant attached an affidavit alleging facts not in the record.

Appellant’s notice of appeal is a preprint-ed form. The form expresses appellant’s desire to appeal from the trial court’s judgment. The notice does not state appellant has the trial court’s permission to appeal. It does not specify any matters raised by written motion and ruled on before trial. The trial court overruled appellant’s motion for new trial without a hearing.

NO RIGHT TO APPEAL

1. The State’s Contention

In its counterpoint, the State contends appellant has no right to appeal. The State notes appellant pleaded guilty and the court sentenced him according to the plea bargain agreement. The State also notes the notice of appeal does not state appellant obtained the trial court’s permission to appeal. The State argues appellant had no right to appeal the court’s denial of his motion for new trial. See Jones v. State, 796 S.W.2d 183, 186-87 (Tex.Crim.App.1990); Tex.R.App.P. 40(b)(1).

2. Texas Rule of Appellate Procedure 40(b)(1)

Rule 40(b)(1) provides in part:

Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendré 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 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).

In this case, appellant pleaded guilty to the court. The trial court assessed the punishment agreed to by the State, appellant, and his attorney. Appellant’s notice of appeal does not state the trial court granted permission to appeal. It does not specify the matters raised by written motion and ruled on before trial.

3.Jones v. State

Jones holds rule 40(b)(1) to be a restrictive rule. Jones, 796 S.W.2d at 186. The method of regulation is the nature of the notice of appeal a defendant files. If a defendant desires to appeal a nonjurisdictional defect or error that occurred before the entry of his plea, he must conform to the requirements of the rule. He must include in his notice his grounds of appeal. He must state he received the trial court’s permission to appeal those matters. See Jones, 796 S.W.2d at 186; Tex.R.App.P. 40(b)(1); see also Morris v. State, 749 S.W.2d 772, 774 (Tex.Crim.App.1986).

4.Application of Law to Facts

In our view, rule 40(b)(1) establishes a bright line test. Because the rule is restrictive, an appellant’s noncompliance limits the reviewing court’s consideration of nonjurisdictional defects or errors to those that occur after the entry of the guilty plea. Jones, 796 S.W.2d at 186; see also Jolivet v. State, 811 S.W.2d 706, 708-09 (Tex.App.-Dallas 1991, pet. granted); Tex.R.App.P. 40(b)(1).

In this case, appellant complains the trial court abused its discretion by denying him an evidentiary hearing on his motion for new trial. This point of error implicates an action of the trial court after appellant entered his guilty plea. We hold appellant has a right to have this Court consider the point. We reject the State’s argument.

DENIAL OF AN EVIDENTIARY HEARING

In his sole point of error, appellant contends the trial court abused its discretion by denying him a hearing on his motion for new trial. Appellant argues his affidavit in support of his motion for new trial required the court to have an evidentiary hearing. See McIntire v. State, 698 S.W.2d 652, 658-60 (Tex.Crim.App.1985); Haight v. State, 772 S.W.2d 159, 161 (Tex.App.-Dallas 1989, pet. ref'd).

The State argues appellant’s affidavit shows there was no need for a hearing because the affidavit does not suggest facts outside the record that would entitle appellant to a new trial. See Boyett v. State, 692 S.W.2d 512, 516 (Tex.Crim.App.1985); Tex.R.App.P. 30(b)(6).

We need not reach the merits of appellant’s contention. Appellant’s motion for new trial affirmatively shows he waived an evidentiary hearing on his motion for new trial. The form appellant filed states:

AFFIDAVITS (in lieu of Hearing). Defendant requests the Court to decide the foregoing motions by affidavits.

We hold appellant waived an evidentiary hearing. We overrule his point of error.

We affirm the trial court’s judgment.

KINKEADE, J., concurs.

EXHIBIT 1

KINKEADE, Justice,

concurring.

I concur in the majority’s decision to affirm the trial court’s judgment. I do not concur, however, with its analysis.

If a defendant wishes to appeal a matter that is nonjurisdictional in nature or that occurred prior to the entry of his plea, he must conform to the requirements of rule 40(b)(1) of the Texas Rules of Appellate Procedure. Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App.1990); Tex.R.App.P. 40(b)(1). In its interpretation of Jones and rule 40(b)(1), the majority holds that the trial court’s denial of the evidentiary hearing on the motion for new trial is a matter that occurred after the entry of the guilty plea. I disagree with that holding.

I believe the “matter” to which Jones refers is not the trial court’s denial of the evidentiary hearing on the motion for new trial, but rather it is the substance of that motion. See Jones, 796 S.W.2d at 186. To hold otherwise would allow a defendant to circumvent the effect of Jones. Under the majority’s opinion, a defendant who raised matters that occurred prior to the guilty plea and neglected to meet the notice requirements of rule 40(b)(1) could still obtain appellate review by merely filing a motion for new trial and raising those matters for the first time. This type of procedural maneuvering renders Jones and the notice requirements of rule 40(b)(1) meaningless.

Davis’s motion for new trial raised certain alleged errors that occurred prior to the entry of Davis’s guilty plea. My reading of Davis’s motion shows that he must have known about these complaints prior to entering his plea. Rule 40(h)(1), therefore, mandated that Davis include in his notice of appeal a statement that the trial court granted him permission to appeal on those issues that occurred prior to the guilty plea. Because Davis’s notice of appeal did not include this statement, he waived his right to appeal. 
      
      . A copy of this pleading is attached to this opinion as Exhibit 1.
     