NO. 1100-99







Price, J., delivered a dissenting opinion in which Meyers, Holland, and Johnson, J.J., joined.


Because the ability to appeal the voluntariness of a guilty or nolo plea was part of a defendant's substantive right to appeal both before and after the 1977 proviso to article 44.02, (1) I respectfully dissent.

Prior to 1977, article 44.02 provided (as it does today): a defendant in any criminal action has the right of appeal under the rules hereinafter prescribed. Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1981). Courts had interpreted article 44.02 and its predecessors very broadly, and recognized that the right to appeal, a right bestowed by the legislature, "should be denied only where the express mandate of the law so requires." See Lemmons v. State, 818 S.W.2d 58, 60 (Tex. Crim. App. 1991).

In 1972, however, this Court decided Helms v. State, in which we judicially limited the right to appeal of defendants who plead guilty. See 484 S.W.2d 925, 927 (Tex. Crim. App. 1972), abrogated by Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000). Under the Helms rule, "[w]here a plea of guilty is knowingly and understandingly made, all non-jurisdictional defects, including federal due process, are waived." Id. at 927. It is important to note that this limitation on the right to appeal was premised on a guilty plea that was voluntarily made. Thus, even under this restrictive rule, the voluntariness of a guilty plea could still be challenged. See id.; see also, e.g., Wade v. State, 508 S.W.2d 851 (Tex. Crim. App. 1974).

The legislature responded to Helms by adding the 1977 proviso to article 44.02. See Lyon v. State, 872 S.W.2d 732, 734-35 (Tex. Crim. App. 1994). The proviso read:

provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.

This legislative proviso had the effect of opening an avenue of appeal that had been foreclosed by the Helms rule. "Without let or hindrance the 1977 amendment to Article 44.02 opened the previously closed way to appellate consideration of issues raised and contested before trial." Morgan v. State, 688 S.W.2d 504, 507 (Tex. Crim. App. 1985). In light of Helms, the proviso was therefore not so much a restrictive amendment as it was permissive in nature. See Lyon, 872 S.W.2d at 735 (citing Morris v. State, 749 S.W.2d 772, 779 n.12 (Tex. Crim. App. 1986)).

The purpose of the 1977 proviso seemed to be aimed at saving judicial resources. (2) See Lyon, 872 S.W.2d at 734-35; Lyon, 872 S.W.2d at 739 (Clinton, J., dissenting) ("The 'main thrust' was, instead, to unburden the dockets of the district and county courts by allowing defendants to appeal without the necessity of a full blown trial."). The Helms rule "discouraged guilty pleas, and caused a defendant, who wanted to preserve his appellate issues, to force the State to a full blown trial on the merits." Id. at 734 (citing Morris, 749 S.W.2d at 779). This caused congestion at the district court level and "[a]pparently cost the State a lot of money." Id. The proviso was thus a means of reducing judicial congestion; "it allowed some appellate issues to be addressed on their merits in negotiated plea situations where the Helms rule otherwise applied in order 'to conserve judicial resources by encouraging guilty pleas,' and to prevent 'windy' appeals." (3) Id. at 735. This Court then replaced art. 44.02's proviso with Rule of Appellate Procedure 40(b)(1), which used virtually identical language. (4)

Neither art. 44.02, its subsequent proviso, nor Rule 40(b)(1) explicitly addressed whether the voluntariness of a plea could be appealed. In the first case to directly address whether a defendant could appeal the issue of voluntariness in a plea-bargained case in light of Rule 40(b)(1), this Court determined that:

In this State, a defendant has always been able to appeal his conviction based on a plea of guilty or nolo contendere claiming that it was not freely and voluntarily entered . . . This Court's application of Article 44.02 did not bar such an appeal in negotiated plea cases. Thus, appeals in plea bargained cases which are governed by Rule 40(b)(1) may likewise challenge the voluntary nature of the plea.

. . . [W]e conclude that a defendant's substantive right to appeal under the proviso to Art. 44.02 included the right to raise a complaint on appeal that a negotiated plea was unknowing or involuntary. Neither Rule 40(b)(1) nor this Court's interpretation of that rule may modify, enlarge or abridge that right.

Flowers v. State, 935 S.W.2d 131, 133 (Tex. Crim. App. 1996) (internal citations omitted).

After Flowers, we replaced Rule 40(b)(1) with Rule of Appellate Procedure 25.2. (5)

As we pointed out in Flowers, Rule 40(b)(1) was passed with the understanding that "the body of case law construing the proviso [to article 44.02] would prevail and still control." Flowers, 935 S.W.2d at 132; Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994). This was because the legislature prohibited us from abridging, enlarging, or modifying the substantive rights of a litigant when it gave us the ability to make rules of appellate procedure. See Tex. Gov't Code Ann. 22.108(a); Flowers, 935 S.W.2d at 132-33; Davis, 870 S.W.2d at 46. We further found in Flowers that it had been the practice under article 44.02 to address the voluntariness of guilty plea regardless of the trial court's granting permission. See Flowers, 935 S.W.2d at 133. We pointed to three post-proviso, pre-Rule 40(b)(1) cases to show that a defendant could appeal voluntariness despite not receiving the permission of the trial court: Fuentes, (6) Mooney, (7) and Wooten. (8)

The majority recognizes these three opinions, but distinguishes them by stating that they stand for the proposition that a guilty plea is involuntary when a defendant is incorrectly assured by a trial court that appeal on certain issues is possible. See ante at 8. "There is no reason to doubt the correctness of those holdings. But that is not the issue before us. The issue is whether the voluntariness of the plea may be questioned on appeal." Id. But we did not cite these cases in Flowers for the proposition that incorrect assurances by trial courts lead to involuntary pleas; they were cited for the proposition that it was within the article 44.02 proviso to challenge voluntariness even though the trial court's permission had not been obtained. See Flowers, 935 S.W.2d at 133. If it was not permissible for a defendant to challenge the voluntariness of his negotiated guilty or nolo plea without first obtaining the trial court's permission, then we would not have addressed the voluntariness issue. (9) Because we did address the voluntariness issue, we implicitly recognized that a defendant could challenge the voluntariness of his plea despite his not receiving the permission of the trial court. See Flowers, 935 S.W.2d at 134. "Perhaps this practice was based on the unspoken assumption that a plea under Art. 44.02 had to be knowing or voluntary, similar to the predicate requirement to the Helms rule, because that had always been a requisite to any guilty plea." Id.

Also, by its own terms, the proviso to article 44.02 is applicable only in cases involving a negotiated plea of guilty or nolo contendere. See Tex. Code Crim. Pro. Ann. art. 44.02 (Vernon 1981). The key to a constitutionally valid guilty plea is that it be voluntarily and intelligently made. See Boykin v. Alabama, 395 U.S. 238 (1969); Meyers v. State, 623 S.W.2d 397, 401-02 (Tex. Crim. App. [Panel Op.] 1981). The very terms of the article 44.02 proviso would therefore require a knowing and voluntary guilty or nolo plea, voluntariness being the predicate. See Flowers, 935 S.W.2d at 133 (". . . voluntariness was at least an implied predicate under the proviso, consistent with prior case law, and as such is not barred from appeal under 40(b)(1)."). It does not seem that the legislature would allow a defendant to appeal a motion to suppress but prohibit the defendant from raising the invalidity of the plea itself. (10)

It is also significant that the legislature has done nothing that would call Flowers's interpretation of article 44.02 into question. It is presumed that the legislature is aware of case law affecting or relating to the statute. See Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex. Crim. App. 1992). "When the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the legislature intended the same construction should continue to be applied to that statute." Marin v. State, 891 S.W.2d 267, 271-72 (Tex. Crim. App. 1994). We assume that the legislature was not only aware of the cases of Fuentes, Mooney, and Wooten, it was also aware of our express holding in Flowers that the ability to challenge the voluntariness of a guilty plea was part of the substantive right to appeal and could be utilized under article 44.02 without first obtaining the trial court's permission. See Flowers, 935 S.W.2d at 133-34. If our interpretation of article 44.02, both expressly and impliedly, were against the intentions of the legislature, then the legislature could have amended article 44.02 to correct our mistake. The fact that it has not indicates that the legislature intended our interpretation that article 44.02, even after the passage of the 1977 proviso, allows a defendant to raise the voluntariness of his negotiated guilty plea without first obtaining the trial court's permission. See Marin, 891 S.W.2d at 271-72.

I agree with the majority that a direct appeal on the issue of voluntariness may not always be the ideal medium. See ante at 11. There are cases in which a motion for new trial or habeas corpus proceeding will adduce evidence outside the appellate record that will entitle the defendant to relief. (11) However, the availability of other procedures is not the issue. (12) In Thompson, we said that only in rare cases will the record on direct appeal be sufficient to show prejudice ineffective assistance of counsel, but we did not foreclose the defendant's right to raise ineffective assistance of counsel on direct appeal. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A defendant may choose to exercise his right to raise voluntariness on direct appeal even though the record may not be developed sufficiently to provide relief. Even though likely to be the minority of cases, there will be some instances, like Mooney and Wooten, where the record will be sufficient to find involuntariness on direct appeal. We should not deny relief in such cases on direct appeal merely because they are likely to be few in number.

Finally, the decision today creates an anomalous result. It is true that in Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000), we abrogated the Helms rule. However, the restrictive language in Helms did not preclude a challenge to the voluntariness of an open guilty plea. See Helms, 484 S.W.2d at 927; Flowers, 935 S.W.2d at 133-34. When we abrogated Helms, we did not alter the ability of a non-plea bargaining defendant to challenge the voluntariness of his plea. See Young, 8 S.W.3d at 666-67. After Helms, and even after Young, a defendant who pleads guilty without the benefit of a plea bargain may challenge the voluntariness of his plea irrespective of the trial court's permission. After today, a defendant who pleads guilty in accordance with a plea bargain must first obtain the trial court's permission under Rule 25.2. We now have two sets of rules for guilty pleading appellants depending on whether they pled with or without the benefit of a plea bargain.

As for the resolution of the case at bar, I would reverse the court of appeals. The ability to challenge the voluntariness of a negotiated plea is included within the substantive right to appeal. See Flowers, 935 S.W.2d at 133. Making this right dependent upon the trial court's permission through the enactment of an appellate rule would abridge a defendant's substantive right to appeal. Id.; see also Tex. Gov't. Code 22.108 (a) (Vernon 1988); State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim. App. 1997) (in determining what could abridge, enlarge or modify substantive rights, citing Flowers for the proposition that, "this Court may not, through appellate rule, restrict appellate jurisdiction recognized under former statute -- claim that plea was involuntary."). Because appellants have long possessed the substantive right to appeal the voluntariness of their negotiated pleas in Texas, neither Rule 40(b)(1) nor its successor, Rule 25.2, could eliminate that right. See Tex. Gov't Code Ann. 22.108(a).

For these reasons, I dissent.

Price, J.

Date Delivered: April 4, 2001


1. See Flowers v. State, 935 S.W.2d 131 (Tex. Crim. App. 1996); Fuentes v. State, 688 S.W.2d 542 (Tex. Crim. App. 1985); Mooney v. State, 615 S.W.2d 776 (Tex. Crim. App. [Panel Op.] 1981); Wooten v. State, 612 S.W.2d 561 (Tex. Crim. App. [Panel Op.] 1981); Richards v. State, 562 S.W.2d 456 (Tex. Crim. App. 1977); Wade v. State, 508 S.w.2d 851 (Tex. Crim. App. 1974); Davila v. State, 496 S.W.2d 629 (Tex. Crim. App. 1973); Patterson v. State, 156 Tex. Crim. 489, 244 S.W.2d 217 (1951); Stafford v. State, 103 Tex. Crim. 144, 280 S.W. 218 (1926); Scott v. State, 29 Tex. Ct. App. 217, 15 S.W. 814 (1890).

2. The exact intentions of the legislature in passing the 1977 proviso have not been completely clear. Disagreements concerning the "main thrust" of the proviso are nothing new and seem to have been quite common between former Presiding Judge Onion and Judge Clinton. See, e.g., Lyon, 872 S.W.2d at 739 (Clinton, J., dissenting); Morgan, 688 S.W.2d at 513-514 (Onion, P.J., dissenting). However, even Presiding Judge Onion when criticizing Mooney and Wooten on their facts, not the procedural backgrounds, emphasized that ". . . a defendant is free to actually prove that his guilty plea was not voluntary or that it was improperly induced by one in authority . . ." Morgan, 688 S.W.2d at 523.

3. Windy appeals were appeals without merit. Many of the windy appeals were made windy as a result of Helms's application. See Lyon, 872 S.W.2d at 735 (citing Morris, 749 S.W.2d at 779 n.12 (Clinton, J., dissenting) ("It [the proviso] essentially renders what were formerly regarded as 'windy' appeals due to operation of the Helms rule congnizable on their merits . . .")). Furthermore, there does not seem to be an indication that challenges to voluntariness constitued a significant number of windy appeals.

4. Rule 40(b)(1) read:

Appeal is perfected in a criminal case by giving timely notice of appeal; except, it is unnecessary to give notice of appeal in death penalty cases. 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 contendere 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) (Tex. Crim. App. 1986, repealed 1998) (emphasis added).

5. Rule 25.2(b)(3) reads:

[b]ut if the appeal is from a judgment rendered on a defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

6. 688 S.W.2d 542 (Tex. Crim. App.1985).

7. 615 S.W.2d 776 (Tex. Crim. App. [Panel Op.] 1981).

8. 612 S.W.2d 561 (Tex. Crim. App. [Panel Op.] 1981).

9. In Mooney, voluntariness was not challenged by the defendant; the issue was raised and addressed by this court sua sponte. See Flowers, 935 S.W.2d at 134.

10. See, e.g., Session v. State, 978 S.W.2d 289, 291 (Tex. App.-Texarkana 1998, no pet.) (noting that rule 25.2's [and inferentially the art. 44.02 proviso] is "triggered by and based upon a voluntary plea of guilty or nolo contendere with a plea bargain in place. . . . it is begging the question to say that this rule is applicable to this case because it involves a plea of guilty or nolo contendere and yet, the question whether there was a voluntary plea to that effect is not allowed to be reviewed.").

11. However, habeas corpus is not necessarily the preferable method for raising voluntariness. A defendant who pleads involuntarily has no right to counsel in pursuing this collateral attack.

12. The majority notes that we said in Mooney that the defendant could have collaterally attacked his conviction because the involuntary plea violated due process. See ante at 11 n.15. However, the fact that we recognized that Mooney could collaterally attack the conviction did not stop us from addressing the voluntariness issue on direct appeal and without the trial court's permission.