Cooper v. State

Falls, Rasmussen, ap- for James Wichita Wayne COOPER, pellant. Terry Appellant, DA, Brasher, Maureen Assist. W. John Falls, Mat- O’Brien, DA, Wichita Assist. of Texas.

The STATE Austin, Paul, Atty., for State’s thew State. No. 1100-99. Texas, Appeals of Criminal

Court

En Banc. WOMACK, opinion delivered J. April 2001. KELLER, P.J., and Court, which, HOLCOMB, HERVEY, KEASLER, JJ., joined. presents question

This case plea-bargaining whether a plea. We appeal the voluntariness forbidden hold that such an 1977, and that legislature in an act of the not, not, allow such our rules do an appeal. 16,1998, July appellant waived

On plead- by jury writing his trial for to an indictment ed nolo contendere plea-bar- forgery, felony. There was gain agreement State year “one to recommend jail facility with in the state confinement fine, days, and restitution credit $37,- approximately amount of ... appel- court sentenced 000.00.”1 The agree- terms of that according lant to the admonished appellant ment. writing, that he could agreed in orally, and permission without the raised except trial court as matters prior to trial. He motion filed written waiver of his filed a written peal. filed, days appellant later

Twelve se, appeal, handwritten notice pro he no- only that “files which said August represent- On appeal.” tice of counsel, requested he ed Reporter's Record appeal, following which was denied the article day. immediately He filed amended pun- assessed did not exceed the said, appeal notice of “The sub- ishment by recommended appeal stance of this was raised written

motion and ruled on defendant, to trial.” the notice must: (A) specify appellant’s appeal appeal, issues on howev- er, jurisdictional defect; pre-trial had nothing do with They motions. were whether his was (B) specify that the substance of knowing voluntary, and whether the appeal was raised writ- trial accepting erred be- ten motion and on ruled cause the adequately court failed to ad- trial; or monish him about the waiver of his right (C) state grant- that the trial court to appeal. permission ed to appeal. The court of appeals ap dismissed the appellant does not claim that Rule peal for jurisdiction, citing want its hold 25.2(b) authorizes his He relies on ings Long v. 980 S.W.2d 878 (Tex.Cr. Flowers v. 935 S.W.2d 131 (Tex.App. no pet.), Worth — Fort App.1996), a appealed case that was under Villanueva 977 S.W.2d 693 predecessor 25.2(b), of Rule Rule ref'd, App. pet. Worth ntime — Fort u 40(b)(1) of the Appellate 1986 Rules of filed), ly that such a defendant Procedure. The Court said in Flowers: challenge the voluntariness of if Appellant pled guilty in accord with a the notice appeal does not reflect that plea agreement. Therefore, the issues trial permission court granted to ap governed he could peal. Cooper v. No. 2-98-350-CR 40(b)(1). compliance with Rule Since he 1999) (not (Tex.App. April Worth — Fort 40(b)(1) comply did not with Rule he designated for publication). permitted could not raise the issues 25.2(b) Appellate Procedure does However, juris- Rule. he could raise authorize an in a case such as and, dictional issues as we have dis- this. The rule reads: cussed, he could raise the issue of (b) sufficiency Form and notice. voluntary. whether his Ac- (1) given writing Notice must be cordingly, appellant is entitled to have filed the trial court clerk. voluntary issue of the nature of his

(2) Appeals addressed the Court of Notice is sufficient if it shows the appealability depen- because its is not party’s desire to from on dant following require- Rule judgment or appealable other or- ments. der, and, if appel- the State lant, complies the notice with Code Flowers, 935 134. The courts of of Criminal Procedure article appeals have question divided 44.01. whether the holding we made in Flowers (3) if But a judg- is from should also present be made under the 25.2(b),

ment rendered on the defendant’s Rule adopted which was after plea of nolo contendere granted Flowers was delivered.2 We re- under Code of Criminal Procedure view. (Tex. Holding appeal- ed: Marshall v. appel- met: one of two conditions plea-bar- in a limiting every appeal 25.2(b) case, court, is like the felony Rule trial

gain, lant had origin. Former statute that was written, pre-trial was from Procedure of the of Criminal Code motion, its language no that restricted contained the 1977 amendment thrust of ma™ was added The application.3 the de where appeals to eliminate in appeal to in 1977 forbade the statute guilty of or fendant had entered felony unless every plea-bargained, case 4, R.S., 685, 2000, Laws §§ ch. 1 & 1985 Tex. Gen. pet.); George App. Corpus no Christi — State, (authorizing Ap- of Criminal the Court (Tex.App. 2472 20 S.W.3d 130 v. — Houston 2000, filed); State, procedure and peals promulgate 7 to rules of Davis v. pet. Dist.] [14th the of conditionally repealing articles of Code (Tex.App. Dist.] [1st 695 S.W.3d — Houston State, Procedure). 1999, pet.); v. no Criminal Guzman 1999, ref'd), simultaneously pet. repealed (Tex.App. proviso was 232 Antonio — San denied, 1161, 1174, Ap- 528 U.S. 120 S.Ct. of cert. the effective date former State, (2000); 40(b)(1), predecessor v. L.Ed.2d 1082 Minix 990 the of pellate 145 Procedure 1999, 25.2(b). (Tex.App. pet. Appellate 922 Procedure Texas Rule of — Beaumont State, (Tex. ref'd); v. S.W.2d 435 Price read: Former Rule 1999, ref'd); App. pet. Vidaurri v. by Paso perfected in case Appeal a criminal — El (Tex.App. S.W.2d 478 timely appeal; except, it is giving notice of — Amarillo 1999, pet.granted); Johnson v. unnecessary give appeal in to notice of pet.); (Tex.App. Eastland, S.W.2d 744 no appeal of shall penalty cases. Notice death — (Tex.App.— v. 978 S.W.2d 289 Session given writing the clerk in filed with of be 1998, pet.). Texarkana suffi court. Such notice shall be the trial of the defendant it shows the desire cient if Holding be followed should judgment ap- appeal from the or other Appeals until the Court of Criminal decides order; judgment ren but if the pealable question: the Hernandez guilty of or con- upon his nolo dered 1999, ref'd). pet. (Tex.App. — Austin pursuant to Article Code of tendere Assuming deciding without that voluntari Procedure, punishment the Criminal may appealed: ness Lowe punishment not exceed the assessed does 1999). (Tex.App. — Dallas agreed by prosecutor and the recommended Holding ap that voluntariness not attorney, by and his the defendant 878; Long, pealed: State, 980 S.W.2d at Elizondo nonjuris- prosecute an order (Tex.App. — Waco prior defect or error that occurred dictional 1998). entry the notice shall state to the of the granted permission to trial court 3. A action has the defendant criminal that those matters specify or shall of under the rules hereinafter however, by motion and rule on prescribed; provided, the were raised written before upon who trial. has been convicted before 40(b)(1) (1986) (repealed guilty P his or of nolo TexR.App. either court, justified by holding of Flowers could be court and the contendere the 40(b)(1), defendant, language the of former Rule the election assesses specifically appeals of a “defect punishment punishment does limited not entry prior to by that occurred punishment recommended error exceed the plea.” defect or error an agreed Because the the defen- entry involuntary plea at the occurs attorney may prosecute dant before, did plea, the former rule appeal, permission he must have court, apply of voluntariness. seem to except on those matters which have But, language, former rule had despite its filed been raised written motion “any apply to an been construed trial. case,” regardless of whether matter in Proc. art. 44.02 as amended Tex.Code Crim. 1977, R.S., 10, that occur Leg., were "defects or errors ch. matters of June 65th the Act entiy Lyon v. plea." repealed after the before or State, 1977 Tex. Gen. Laws 14, 1985, (Tex.Cr.App.1994). Leg., part of June 69th Act 26.13(a)(3) nolo contendere before court as ing of the Code of Crimi- result bargain the punish nal That required Procedure. act a court ment assessed did not exceed to admonish a was pleading defendant who agreed upon.4 The same en felony “the fact that if acted another punishment amendment to curtail the does not assessed exceed pending appeal.5 to bail pros- Taken recommended together, these two acts aimed at ecutor and the defendant and eliminating, reducing, attorney, of his give the trial court must delay plea-bargaining defendants to the defendant before he execution of their by taking prosecute sentences any on matter in the (known appeals meritless colloquially except as case for matters those raised appeals “street” were decided written motions filed to trial.”7 The “windy” opinions).6 purpose evident act to was inform the defendant of the restrictions on There is nothing language imposed that proviso, the 1977 so 1977 statute suggests that that the volun- that the defendant could take them into tariness of a exempt was from the account making knowing and vol- Indeed, limitation on appeal. any such untary plead guilty.8 decision to As the exception operation to proviso the' it, legislature saw the restrictions of the completely legis- would have frustrated the applied to matter in the purpose lative to eliminate meritless case, without limitation. peals. only limitation on the an appellant allege was Finding subject that the statute was involuntary is the limit of human imag- an exception appeals on voluntariness ination, which is exactly the evil that the would require most rea- compelling legislation sought to eliminate. sons. No presented such reasons were

Our conclusion that Flowers. In that case the Court relied on every appeal limits every ground precedents three conclude that the plea-bargain, felony is bolstered to appeal included the the action of the next in enact- guilty plea.9 voluntariness of a In each of State, 772, 11, 1979, R.S., 4. Morris v. Leg., 7. See Act June 66th 1, 524, 1108, Cr.App.1986). § ch. 1979 Tex. Gen. Laws 1109. 1977, 5. Before all misdemeanants all fel- years ons whose sentences did not key validity guilty exceed 15 8. "The constitutional were entitled to voluntary bail. See Code of is intelligently Criminal that it be 1965, R.S., and, counsel, Leg., Procedure Act of 59th ch. made if advice of that 722, 1, 44.04(a), § reasonably art. 1965 Tex. Gen. competent Laws counsel be and render 2, 317, p. vol. 511. The 1977 amendment purpose effective assistance. The and func- 26.13, then, deny authorized trial courts to bail to felons tion the mandates of article are years only whose sentences did not constitutionally exceed if to ensure that valid good there they was cause accepted by judge to believe that is entered court, appear would not when convictions be- compliance and substantial they Meyers came final or would required.” that commit other with its dictates is 25, 397, May offenses while on bail. See (Tex.Cr.App.1981) Act of 401-02 R.S., (citations omitted). Leg., 65th ch. 1977 Tex. Gen. Laws The Act also authorized the (Tex.Cr. 9. Fuentes v. impose courts to conditions on bail. Ibid. Mooney App.1985); (foot- Young (Tex.Cr.App.1981); 665-66 Wooten v. renumbered). (Tex.Cr.App.1981). give defendant information the court the have set out above: The reasons consequences plea of the about in to do legislature forbade it so do could be so the decision to so that the statute. completely would frustrate knowing. practice But the voluntary and authority not rule-making Our does extend bargaining, was made neces plea of which enlarging right the of this resources, Ironically, point judicial made that shift sary fashion. the lack of said, when we “Neither Rule Flowers decision in most cases to ed the crucial 40(b)(1) of interpretation nor this Court’s that was struck plea-bargain agreement may modify enlarge that rule that attorneys for the State between appeal].”10 irony The is that [to place negotiation in a that took defendant in Flowers that decision allows felony of off the record. For the courts case, felony in a this plea-bargained, Court recognized and practice this Texas enlarged modified and the by statute in 1977.12 Now in regulated peal.11 knows, plea-bargain case the defendant plea is accepted has before the en support legisla-

Two other reasons the tered, of important consequence the most appeals tive decision to voluntari- forbid of puni guilty: upper the limit on ness in cases. is a cost-benefit the such One The fel- Even when the record shows analysis. plea-bargain, number shment.13 Flowers, permits (citing the to be withdrawn if the 935 S.W.2d at 134 that Tex. 22.108(a)). rejects agreement, the the was added court Gov't Code 27, 1977, R.S., May Leg., ch. Act of 65th Ap- 11. It will be noticed that former Gen. Laws 748. 1977 Tex. 40(b)(1) pellate Procedure modified the 1977 by restricting only it to errors that statute not 13.Actually punish- precise the in most cases entry plea; the it also occurred before known, trial courts almost ment is because "nonjurisdictional” added restriction to de- always that was follow the recommendation (1996) P. fects or errors. Tex.R.App. bargained was true even before for. This (repealed This has been restriction when article 26.13 amended supra p. into the new rule. See carried recognize entry pleas that regulate the pre- validity is The of that modification bargaining. were result the sented in however, secret, negotia- "It no that is basically honored the courts tions are 12. in Code Criminal Procedure throughout 26.13(a)(2) they of Texas as requires the the State began judges agreements, United States. If inquire plea-bargain into admonishing trial court erred in performance. legislature reasonably accepted, before his is determined to eliminate small number of plea will not be involuntary held appeals prevent meritorious a much if the defendant knew the he larger appeals. number meritless was facing and the trial court followed the may This decision seen as even plea agreement.14 sense, In a real there more when it is reasonable remembered fore, when legislature identified cases involuntary meritorious claims of in which the trial court plea- followed the may pleas procedures: be raised other bargain agreement, it identified corpus.15 motion trial and new habeas which pleas voluntary. procedures These adequate are not The number of cases in which resolve pleas, claims involuntary when the trial court followed they are superior in that plea agreement small, very is therefore claim supported information and the number of cases in from sources than appellate broader appear involuntariness would in an appel- record.16 late Experience record even smaller. gave has shown us that most consideration to the cases of involun- tary possibility pleas result from circumstances that have record, regarded challenges existed outside such as misun- as information, derstandings, better corpus erroneous im- raised habeas than on paired judgment, appellate ineffective because assistance record will counsel, plea-bargains and grounds that were not often contain insufficient for a followed or turn impossible out to be of fair legisla- resolution of the claim. The plea negotiations honor indepen- guilty and to pleas judge pun- set in which the assessed sentences, separate dent or to inducement ishments. See Office of Administration, Court plead guilty particular charge to a judicial would be Report System- Annual of the Texas (1999) (based removed and pursue defendants would their 1999 135 on de- Fiscal Year rights by jury. adjudications rights judgments to trial ferred If these of convic- pursued, jury). tion jury proportion guilly the additional of without a This of thousands tri- pleas system grind be als would force the could not maintained if trial to to a halt.” courts departed Bogomolny, plea-bargain Robert G. from Criminal recommendations Prosecution any significant Defense, degree. in The Impact of the Texas Consti- 70-71 System tution on the Criminal Justice State, . 14 See v. Eatmon (Allan eds., 1973). K. Butcher al. et Cr.App.1989). least, County, "In Harris the district at- office, torney’s by controlling bar- precedents 15. As we said in of gaining process, one able on quasi- to exercise a relied, “[Sjince which

judicial power was in the area of criminal sentenc- law, aas matter of ing. constitutional part, For the most the sentences of fel- process due conviction violates and would during ons are determined outside subject Mooney, be to collateral plea negotiations, attack.” su- judges are extra (citations omitted). pra note at 778 legally great accept majority forced to pre-arranged these sentences because of the State, overwhelming Thompson caseload with which courts v. Cf. Johnson, (Tex.Cr.App.1999) ("Rarely burdened.” James N. reviewing Sentenc- will a Courts, ing provided in the Criminal District opportunity Hous. court be with the (1972). make its on direct L.Rev. 994-95 determination today. A is it In a capable providing true State Fiscal record a fair evalua- fortiori 1999, in Year involving district courts of Texas tion of the merits of the claim such jurisdiction felony prosecu- which have allegation” a serious as ineffective assistance tions, counsel). of convictions were 96.6% obtained (Tex.Crim.App. render have decided to well ture 1991). a unappealable as the issue in encouraging litigation

means 1972, however, decided this Court more a new and corpus, habeas where judicially lim which Helms v. developed.17 can be complete record who of defendants right ited the of Flow- holding these reasons the For 925, 927 See 484 S.W.2d plead guilty. rule for applied our new ers will Young abrogated (Tex.Crim.App.1972), a plea- appeal by notice of (Tex.Crim.App. Like the 1977 bargained, felony case. “[wjhere rule, the Helms Under 25.2(b) statute, permit does Rule and under knowingly guilty plea of to be raised made, de non-jurisdictional all standingly fects, process, are including federal due important It is of waived.” Idat judgment Court The Second on the note this limitation Appeals is affirmed. guilty plea on a premised appeal was PRICE, J., dissenting opinion, filed a Thus, under even voluntarily made. HOLLAND, MEYERS, rule, the voluntariness this restrictive JOHNSON, JJ., joined. challenged. plea could still id.; also, e.g., Wade see PRICE, J., dissenting delivered (Tex.Crim.App.1974). HOLLAND, MEYERS, opinion which JOHNSON, J.J., joined. to Helms legislature responded 44.02. to article adding the 1977 the volun- Because the 732, 734-35 part Lyon or nolo tariness proviso read: (Tex.Crim.App.1994). defendant’s substantive both and after the before however, the defendant provided, 44.02,1 Irespectfully dissent. has convicted either who (as 1977, guilty or of nolo contendere provided Prior to article 44.02 court, upon criminal the court and today): it a defendant in before does defendant, pun- assesses under the election of right action has the punishment does ishment and the prescribed. rules hereinafter Tex.Code (Vernon 1981). by punishment recommended 44.02 exceed the CRIm.PROC.Ann. art. interpreted had article 44.02 and Courts attorney may prose- and his broadly, recog predecessors very

its have permission he must appeal, appeal, cute nized court, mat- except on those of the trial legislature, “should be bestowed by written have raised express ters denied where mandate prior to trial. v. motion filed requires.” so Lemmons the law State, (Tex.Crim.App.1977); George 456 43 562 S.W.2d O. E. Dawson, Dix and Robert State, (Tex.Crim.App. v. 508 S.W.2d 851 Wade and Proce- Texas Practice —Criminal Practice State, (Tex. (Supp.1999). 1974); 629 v. 496 S.W.2d Davila dure State, 1973); v. 156 Tex. Crim.App. Patterson State, (Tex. v. S.W.2d 131 1. See Flowers 935 489, (1951); v. S.W.2d 217 Crim. 244 Stafford 1996); State, Crim.App. Fuentes v. 688 State, 218 S.W. 103 Tex.Crim. 280 1985); Mooney v. (Tex.Crim.App. 542 (1926); 15 Tex.App. v. 29 Scott (Tex.Crim.App. Op.] [Panel 615 S.W.2d (1890). S.W. 814 (Tex. 1981); Wooten 1981); Op.] Crim.App. Richards [Panel legislative This proviso preserve issues, had the effect of appellate to force opening an of appeal avenue that had been the State to a full blown trial on the mer- foreclosed the Helms rule. “Without Morris, (citing its.” Id. at 734 let or hindrance the 1977 amendment at congestion This caused at the opened Article 44.02 previously closed “[ajpparently district court level and cost way appellate consideration issues money.” proviso the State lot Id. The raised and contested trial.” Mor reducing judicial was thus a means of con- gan gestion; “it appellate allowed some issues Helms, Crim.App.1985). light to be negoti- addressed on their merits in proviso was therefore not so much a re ated situations where the Helms rule strictive permissive amendment as it was applied otherwise in order ‘to conserve Lyon, nature. See 872 S.W.2d at 735 judicial resources encouraging guilty (citing Morris v. pleas,’ prevent ‘windy’ appeals.”3 12 (Tex.Crim.App.1986)). n. Id. at 735. purpose of the 1977 seemed replaced This Court then art. 44.02’s saving judicial be at aimed resources.2 proviso with Appellate Procedure Lyon, 734-35; Lyon, 40(b)(1), which virtually used identical lan- (Clinton, J., dissenting) S.W.2d at 739 guage.4 (“The was, instead, ‘main thrust’ to unbur- subsequent provi- Neither art. den the dockets of the county district and so, 40(b)(1) explicitly nor Rule allowing courts addressed defendants necessity without the of a full whether the blown tri- voluntariness of could al.”). The Helms rule “discouraged guilty appealed. directly In the first case to pleas, defendant, and caused a who wanted address whether defendant could 2. The significant exact intentions of the voluntariness constituted a num- passing 1977 proviso windy have not been appeals. com- ber of pletely Disagreements concerning clear. 4.Rule read: nothing "main thrust” of the new quite and seem to have been common be- Appeal perfected in a criminal Presiding Judge tween former Onion and giving timely appeal; except, notice it is See, Judge e.g., Lyon, Clinton. 872 S.W.2d at unnecessary give notice of (Clinton, J., dissenting); Morgan, penalty death cases. Notice of shall (Onion, P.J., dissenting). S.W.2d at 513-514 given writing filed clerk of However, Presiding Judge even Onion when the trial court. Such shall be notice suffi- facts, criticizing Mooney and Wooten on their if it cient shows the desire of defendant procedural backgrounds, emphasized not the judgment appeal to from the or other actually prove that "... a order; defendant is free to pealable judgment was if guilty plea voluntary that his was not or that plea rendered or nolo improperly authority it was induced one pursuant contendere to Article Code of Morgan, ...” 688 S.W.2d 523. at Procedure, punishment Criminal as- sessed does not exceed the rec- Windy appeals appeals were without merit. ommended Many windy appeals windy attorney, were made and his in order to defendant prosecute application. Lyon, appeal nonjurisdictional as a result of Helms's See an a Morris, (citing at entry 872 S.W.2d or error that occurred defect J., (Clinton, ("It dissenting) at 779 n. 12 [the the notice shall state that the trial proviso] essentially granted permission appeal renders were for- or what court shall merly regarded ‘windy’ appeals op- specify as due to that those matters were raised congnizable eration of the Helms rule on their written motion and ruled on trial. Furthermore, ...")). 40(b)(1) merits there does not (Tex.Crim.App.1986, P. TexR.App. 1998) added). challenges repealed seem to be an (emphasis indication that abridg prohibited us from plea-bar- in a the issue voluntariness the substan enlarging, modifying 40(b)(1), ing, light gained case in of Rule it gave us litigant when rights tive determined that: Court proce appellate rules of to make always a defendant has In this dure. Ann. Tex. Gov’t Code based conviction been able Flowers, 22.108(a); at 132- 935 S.W.2d or nolo contendere on Davis, further 33; at We 870 S.W.2d freely that it not vol- claiming was that it had been found in Flowers appli- ... This Court’s untarily entered to address under article practice 44.02 such cation of Article 44.02 did bar regardless guilty plea cases. negotiated granting permission. court’s the trial Thus, appeals bargained Flowers, pointed at 133. 935 S.W.2d We 40(b)(1) governed Rule 40(b)(1) post-proviso, pre-Rule to three voluntary na- may challenge the likewise ap could that cases to show plea. ture of despite receiving peal voluntariness ... conclude that defendant’s [W]e Fuentes,6 court: permission of the trial Wooten,8 under the substantive Mooney,7 and to Art. 44.02 included the proviso recognizes these three majority complaint on that to raise by stating distinguishes them opinions, but negotiated plea unknowing or invol- that a they proposition stand for the that 40(b)(1) nor this untary. Neither Rule involuntary when a defendant guilty plea is interpretation that rule Court’s by a trial court incorrectly assured modify, enlarge abridge right. possible. See on certain issues is reason doubt ante at 81. “There holdings. But the correctness of those (internal Crim.App.1996) citations omit before us. The issue that is not the issue ted). is whether the voluntariness 40(b)(1) Flowers, replaced After Rule Id. But we questioned appeal.” Appellate Procedure 25.2.5 for the cite these cases in Flowers did not Flowers, pointed Rule As we out in proposition that incorrect assurances with the understand- passed they pleas; trial courts lead to body construing “the law ing that that it was proposition cited for the prevail would [to 44.02] chal- the article within Flowers, though and still control.” even lenge voluntariness 132; 43, 46 had not been obtained. Davis v. court’s Flowers, If at 133. it was (Tex.Crim.App.1994). This was because See (C)state 25.2(b)(3) granted per- trial reads: 5.Rule judgment appeal is from a ren- mission [b]ut if the guilty or dered on a defendant’s (Tex.Crim.App.1985). nolo contendere under- Code of Criminal 542 6. 688 S.W.2d 1.15, punishment the Procedure article and the assessed did not exceed Op.] (Tex.Crim.App.[Panel 776 7. 615 S.W.2d the recommended 1981). defendant, the must: the notice (A) specify juris- a that the is for Op.] (Tex.Crim.App. [Panel 8. S.W.2d 561 612 defect; dictional 1981). (B) specify that the substance peal motion and was raised written trial; on before or ruled 86 permissible for a defendant to chal- It also significant legislature is that the that would call Flowers n

lenge the negotiated voluntariness nothing has done guilty plea or nolo without first obtaining interpretation ques- of article 44.02 into permission, the trial court’s then we would presumed tion. It is legislature that the not have addressed the voluntariness is- affecting aware case law or relating to sue.9 Because we did the address volun- the statute. See Grunsfeld issue, tariness implicitly recognized we 521, (Tex.Crim.App.1992). S.W.2d a challenge could the volun- meets, Legislature par- “When the a after tariness despite of his receiv- ticular statute has judicially con- ing of the trial court. See strued, statute, without changing Flowers, “Perhaps at 134. S.W.2d this presume the legislature intended the same practice unspoken was based on the as- construction applied should continue to be sumption that a under Art. 44.02 had to that statute.” Marin v. knowing voluntary, or similar to the 267, S.W.2d 271-72 (Tex.Crim.App.1994). predicate requirement rule, to the Helms We legislature assume that was not because always that had requisite been a only Fuentes, aware the cases of Moo- guilty plea.” Id. Wooten, ney, and it was also aware our Also, terms, its own express holding applicable article 44.02 is challenge the voluntariness guilty involving negotiated plea a guilty or part of the substantive nolo contendere. See Tex.Code CrimPRO. appeal and could be utilized under article (Vernon 1981). Ann. art. 44.02 key 44.02 obtaining without first constitutionally guilty plea valid is that it Flowers, permission. court’s be voluntarily intelligently made. See at interpretation 133-34. If our Alabama, Boykin 395 U.S. 89 S.Ct. 44.02, expressly article both impliedly, (1969); Meyers L.Ed.2d 274 against legisla- the intentions of (Tex.Crim. 401-02 ture, legislature then the could have App. Op.] [Panel very terms of the article amended 44.02 to correct our mis- would therefore require a knowing voluntary guilty take. The fact that it has not indicates plea, nolo being predi voluntariness legislature interpre- intended our Flowers, cate. See tation that article even after the (“... at least an implied voluntariness.was passage proviso, of the 1977 allows a de- predicate the proviso, under consistent fendant raise voluntariness of his law, with case and as such not negotiated guilty plea without first obtain- 40(b)(1).”). from barred under It ing permission. the trial court’s See Ma- does not seem that the would rin, 891 S.W.2d at 271-72. allow defendant to a motion to I

suppress agree majority with prohibit that a direct defendant from raising invalidity itself.10 on the issue Mooney, voluntary plea voluntariness was not chal- con- nolo defendant; lenged the issue was raised plea bargain place tendere .... it is sponte. and addressed this sua begging question say that this rule is Flowers, 935 S.W.2d at 134. applicable to because it involves a yet, or nolo contendere and See, e.g., Session v. question voluntary there whether (not (Tex.App. pet.) no — Texarkana reviewed."). effect is not allowed be ing inferentially that rule [and 25.2’s the art. proviso] "triggered by and based bargain of a the benefit always See ante without the ideal medium. not voluntariness his may challenge the eases in which motion at 82. There are permission. trial court’s irrespective of the corpus proceeding trial or habeas for new pleads guilty today, a defendant who appellate After outside the will adduce evidence must bargain to in accordance with that will entitle the defendant record un- However, permission trial court’s availability of other first obtain relief.11 two Thomp- now have sets procedures is the issue.12 Rule 25.2. We not der de- son, pleading appellants in rare cases will we said that rules for they pled on direct be sufficient pending record on whether prejudice plea bargain. ineffective assistance show the benefit of without counsel, foreclose the de- we did not bar, I of the case at As for the resolution right to raise ineffective assis- fendant’s appeals. the court would reverse appeal. of counsel on direct See tance challenge voluntariness ability to 808, 813 Thompson v. sub within the negotiated is included may (Tex.Crim.App.1999). A defendant Flowers, appeal. right to See stantive right to raise volun- choose to exercise depen Making right at 133. this S.W.2d though the on direct even tariness trial court’s dent developed sufficiently not record rule appellate of an through the enactment likely provide though Even to be relief. abridge substantive a defendant’s would cases, minority of there will be some Id.; appeal. see also right Tex. Wooten, instances, Mooney like where (Vernon 22.108(a) 1988); § Gov’t.Code find the record will be sufficient involun- 516, 519 Hardy, State tariness on direct We should (in determining what could Crim.App.1997) in such deny relief direct abridge, enlarge modify substantive likely merely they to be few because citing proposition for the rights, number. not, that, through appel “this Court Finally, today decision creates rule, jurisdiction rec appellate late restrict Young result. It true that anomalous ognized under former statute —claim (Tex.Crim.App. involuntary.”). appellants Because 2000), rule. abrogated we the Helms long possessed the substantive have However, language restrictive negoti their appeal the voluntariness of preclude challenge did not Helms Texas, Rule pleas in neither ated open guilty plea. of an See successor, Rule could elimi nor its Helms, 927; Flowers, right. See Tex.Gov’t nate that Code Ann. abrogated at 133-34. When we 22.108(a). Helms, did not alter the we reasons, I dissent. For these challenge non-plea bargaining defendant to Young, plea. the voluntariness Helms, After at 666-67. pleads Young, a who

even after However, necessarily his conviction because corpus is tacked habeas raising preferable voluntari- process. method for ante at 82 n. due violated involuntarily pleads A defendant who However, ness. recognized that the fact that we pursuing collat- has counsel in collaterally convic- Mooney attack the could eral attack. addressing vol- stop us did not from tion appeal and without on direct untariness issue Mooney majority 12. notes that said permission. court’s collaterally at- defendant could have notes S.W.2d 561 was entered in which guilty ony cases we held that the these small, involuntarily very compared appellant when the had aby assured trial court incorrectly appeals large of meritless number possible. There authorized. would be of those reason to doubt correctness the rule we It must be remembered not the issue before holdings. But that is plea-bar construing applies the voluntariness us. The issue is whether era a In a former gained, felony cases. by appeal. plea may questioned expected plead defendant was of the three cases addressed that None (often himself lawyer) and throw without issue. no assur mercy of the court with on the actually the issue of When we consider follow. ance of plea may whether voluntariness of a first to do so was defendant’s decision plea-bargained, from a be raised on plea was in court when the manifested conviction, felony we find that answer it crucial that At that time was entered. must be that it not. The first two

Case Details

Case Name: Cooper v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 4, 2001

Citation: 45 S.W.3d 77

Docket Number: 1100-99

Court Abbreviation: Tex. Crim. App.