The opinion
LEVY, Justice,
dissenting.
I respectfully dissent, and would reinstate the appeal, previously dismissed on jurisdictional grounds because of an ineffective notice of appeal. See Penhaker v. State, 689 S.W.2d 233 (Tex.App.—Houston [1st Dist.], 1985). It seems appropriate to accept less than impregnable grounds for reinstatement because the procedural error sought to be overcome is merely a filing of a notice of appeal made technically “premature” by the cautionary action of another attorney — unaware at the time that he had earlier been dismissed — who had apparently wanted only to preserve the record for an appeal by filing a motion for new trial. A prima facie showing of good cause for reinstatement should be sufficient, and we ignore it at peril of violating the meaning of art. 44.23, V.A.C.C.P., which requires that “... no affirmance or reversal of a ease shall be determined on mere technicalities or on technical errors in the preparation and filing of the record on appeal.” (emphasis added).
In Johnson v. State, 688 S.W.2d 656 (Tex.App.—Houston [1st Dist.] 1984), appellant filed a pro se motion for new trial after notice of appeal had been filed by his attorney. Appellant did not renew his notice of appeal after his motion for new trial had been overruled, as required by Tex. Code Crim.P.Ann. art. 44.08(b), (Vernon Supp.1985). A notice of appeal is premature and does not effectively initiate the appeal if filed before the disposition of a motion for new trial, either by action of the court or by operation of law. Menasco v. State, 503 S.W.2d 273 (Tex.Crim.App.1973). This court held that there was “good cause” excusing the premature filing of the notice of appeal, and allowed reinstatement in a subsequent order. In the name of constitutional.Due Process, I believe that the appellant herein is similarly entitled to nothing less than procedural fairness, achievable only through a generous treatment of this procedural snarl, and not through a mechanical and unrealistic application of the law, far beyond its supporting rationale.
In Evitts v. Lucey, — U.S. —, 105 S.Ct. 830, 838 , 83 L.Ed.2d 821 , the United States Supreme Court on January 21, 1985, in reinstating an appeal dismissed by the Kentucky State courts because of a failure to file a timely “Statement of Appeal,” held that the Due Process Clause of the Fourteenth Amendment prohibited Kentucky from terminating a criminal appeal because a careless attorney had violated local rules. “A State may not extinguish this right (of appeal) because another right of the appel *235 lant — the right to effective assistance of counsel — has been violated ... (W)hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution — and, in particular, in accord with the Due Process Clause.”
In short, Due Process necessitates a new — but more just — approach, requiring reinstatement.