IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NOS. 1929/30-99

 

TIMOTHY JORDAN, Appellant

v.


THE STATE OF TEXAS

 


ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY


Johnson, J., joined by Meyers, Price and Holland, JJ., dissenting.



D I S S E N T I N G  O P I N I O N



Appellant was placed on "regular" community supervision following his plea of guilty to theft, and he was placed on deferred adjudication community supervision following his plea of guilty to robbery. Following revocation of community supervision in both cases, he challenged his pleas of guilty as involuntary. The majority today overrules case law permitting such a challenge with regard to "regular" community supervision, and then applies the rationale for that action to the deferred adjudication context. Because its decision is another in a recent line of cases which cut back on appellate rights of defendants on questionable bases, and because it overrules long-established precedent, I respectfully dissent.

Only two years ago, this court held that a defendant put on deferred adjudication was required to raise issues relating to the original plea proceeding in an appeal taken when the deferred adjudication community supervision was first imposed; such issues could not be raised following revocation of the deferred adjudication. Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). We did so despite statutory language indicating otherwise, (1) and despite the fact that the precedent on which we relied had been undercut by our current approach to statutory interpretation. (2)

Little more than a year later, this court summarily held, without explanation, that Manuel precluded a defendant from raising a claim concerning the voluntariness of his plea following revocation of his deferred-adjudication status. Daniels v. State, 30 S.W.3d 407 (Tex. Crim. App. 2000). This, despite the fact that Manuel was specifically premised on equating "regular" community supervision with deferred adjudication community supervision, in regard to appealability of issues. Manuel, 994 S.W.2d at 661-2. We have long permitted challenges to the original conviction on an appeal from an order revoking probation, i.e., "regular" community supervision, when they could be raised in a post-conviction habeas corpus proceeding. (3) Since our case law clearly establishes that a challenge to "fundamental errors," (4) including a claim that a plea was involuntary, may be raised in an application for a writ of habeas corpus, (5) the logic of Manuel dictated the opposite of the result reached in Daniels.

Now, apparently recognizing that Daniels is at odds with our case law, a majority of the court today undertakes to "fix" this problem by overruling the case law with which Daniels is at odds. Ante, at ___ (slip op. at 2-5). The stated rationales for such a decision are judicial economy and reduction of confusion. Ante, at ___ (slip op. at 3). With regard to confusion, a review of appellate case law indicates that neither we nor the intermediate courts of appeal have shown much confusion in ability to dispose of such claims. (6) As to judicial economy, it seems to me to exact too high a price. Recently, in Cooper v. State, ___ S.W.3d ___, 2001 Tex. Crim. App. LEXIS 25 (Tex. Crim. App. April 4, 2001), a majority of this court held that a plea-bargaining defendant could not appeal the voluntariness of his plea. The rationale in that case was also partially predicated on an economic decision, i.e., a cost-benefit analysis. Id. at ___, 2001 Tex. Crim. App. LEXIS 25, at *12-*14. The effect of these decisions is to value "economy" at the expense of fundamental rights of criminal defendants. I dissent.

Johnson, J.





Date Delivered: June 27, 2001



Publish

1. Article 42.12, 5(b) of the Texas Code of Criminal Procedure provides that "[a]fter an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred." (Emphasis added.) See, e.g., Webb v. State, 20 S.W.3d 834, 836 n.2 (Tex. App.--Amarillo 2000, no pet.) (noting Manuel's potential conflict with the legislative dictate of art. 42.12, 5 of the Texas Code of Criminal Procedure, since in denying defendants the opportunity to assert on appeal perfected after guilt is adjudicated those issues which could have been asserted before guilt was adjudicated, the decision does not treat "all proceedings" as if the adjudication of guilt had not been deferred); Clark v. State, 997 S.W.2d 365, 368 (Tex. App.--Dallas 1999, no pet.) (noting that Manuel has nullified the language in art. 42.12, 5(b) that requires all proceedings, including the defendant's appeal, to continue as if adjudication had not been deferred).

2. The decision in Manuel was predicated on a line of cases that purported to interpret art. 44.01(j), and that began with Dillehey v. State, 815 S.W.2d 623 (Tex. Crim. App.1991). Manuel, 994 S.W.2d at 661. In Dillehey, the court's rationale in interpreting art. 44.01(j) was explicitly based on what it perceived to be the intent of the legislature, based on Senate floor discussions, rather than on the text of the statute, which would have led to a much different result. Dillehey, 815 S.W.2d at 624-6. Less than six months after Dillehey, we rendered a decision in which we held that our approach to statutory interpretation should, except in narrowly prescribed situations, focus upon the literal text of the statute. Boykin v. State, 818 S.W.2d 782, 785-6 (Tex. Crim. App. 1991). As was subsequently noted by Judge Benavides, Boykin effectively overruled our approach to statutory interpretation in Dillehey. See Ex parte Crouch, 838 S.W.2d 252, 256 (Tex. Crim. App. 1992) (Benavides, J., concurring). Thus, Dillehey's interpretation of art. 44.01(j) is questionable and makes Manuel questionable, as well.

3. See, e.g., Dinnery v. State, 592 S.W.2d 343, 350 (Tex. Crim. App. 1979) (op. on reh'g) (citing Ramirez v. State, 486 S.W.2d 373 (Tex. Crim. App. 1972)); Bailey v. State, 559 S.W.2d 957, 957 (Tex. Crim. App. 1978); Alvarez v. State, 995 S.W.2d 185, 187 (Tex. App.--San Antonio 1999, pet. dism'd); Puckett v. State, 801 S.W.2d 188, 192 (Tex. App.--Houston [14th Dist.] 1990, pet. ref d); Trcka v. State, 744 S.W.2d 677, 680 (Tex. App.--Austin 1988, pet. ref d); Smola v. State, 736 S.W.2d 265, 266 (Tex. App.-Austin 1987, no pet.).

4. See, e.g., Dinnery, 592 S.W.2d at 350-1; Huggins v. State, 544 S.W.2d 147, 148 (Tex. Crim. App.1976); Puckett, 801 S.W.2d at 191-2; Trcka, 744 S.W.2d at 680; Smola, 736 S.W.2d at 266.

5. See, e.g, Ex parte McCullough, 966 S.W.2d 529, 532 n. l (Tex. Crim. App. 1998) (noting that, generally, claims of involuntariness of a plea are cognizable on habeas corpus); Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999) (holding, on application for writ of habeas corpus, that applicant's guilty plea was involuntary); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) (holding, on application for writ of habeas corpus, that applicant's guilty plea was not shown to be involuntary), cert. denied, 525 U.S. 810, 119 S. Ct. 40, 142 L. Ed.2d 31 (1998); Ex parte Tovar, 901 S.W.2d 484 (Tex. Crim. App. 1995) (holding, on application for writ of habeas corpus, that applicant's guilty plea was not shown to be involuntary); Ex pane Bittikoffer, 802 S.W.2d 701 (Tex. Crim. App. 1991) (holding, on application for writ of habeas corpus, that applicant's guilty pleas were involuntary); Ex parte Stephenson, 722 S.W.2d 426 (Tex. Crim. App. 1987) (holding, on application for writ of habeas corpus, that applicant's guilty plea was involuntary); Ex parte Smith, 678 S.W.2d 78 (Tex. Crim. App. 1984) (holding, on application for writ of habeas corpus, that applicant's guilty plea was involuntary).

6. See, e.g.,supra notes 3-5.