*1 papers. court to term appellate writing Perhaps discuss issues are all bar, by the facts of at implicated the case apply, perhaps these reasons there for it is difficult to test operational well.22 are others as of a dynamics legal rule assembled being reasons, Regardless urge in a factual vacuum.”18 beyond necessary any write what is explained, As Chief Justice has Warren Selya should Justice be tamed. Court, not been “[i]t has the custom of the Appeals United Court of for the States it, deciding the cases which before come argues appellate First Circuit courts lengthy write abstract dissertations prudence in opin- should strive for their upon present- which questions are neither “[Pjrudence ions. counsels judges not ed record nor necessary proper large, reach and decide out controversial disposition of the issues He raised.”19 necessity issues in the absence of a do complained majority’s opinion jurist de- prudent so. The will typically “departed that case from this custom and narrowest, cide on the ground cases surest is in nature of an advisory for opinion, available, calls, leaving tougher attempts finality many to resolve with broader for future implications, cases that problems difficult which are at best squarely them.”23 present majori- tangentially involved here.”20 The judgment. I concur in the Court’s ty’s in this opinion case does same thing. prevalence
Given of dicta
opinions the standard complaints
dissenters, why “[o]ne wonders dicta obiter present.”21 are even One author some Jr., Appellant, Alfredo MONREAL theories: Sometimes, they for are included rea- Sometimes, of contrast. judges ap- sons STATE of The Texas. to be pear writing essays short No. 2289-01. Perhaps opin-
law. judge wants Appeals Texas, included in a Perhaps ion case book. he Court Criminal bucking for En job. Perhaps another banc. writes well judge looking and is 12, March 2003. of self-expression. Perhaps mode not write all opinions does but them to do
leaves law clerks who better, they
know or who think still “Stand." Its cuit Mistakes in Planned Par- Id. 20. Kansas, enthood Mid-Missouri & Eastern Ehlmann?, 983, Creighton
Inc. V.
L.Rev.
Quinn,
21.
Chi.-Kent L.Rev. at
713.
(1999).
Id.
22.
Lee, Deconstitutionalizing
Judi-
18. Evan Tsen
Mootness,
ciability:
Example
The
105 Harv.
Selya, Essay: Thoughts
M.
23. Hon. Brace
605,
(1992).
L.Rev.
Pub-
the Bench:
Game:
Confidence
Connecticut,
Culombe
U.S.
Eng.
Judiciary,
Perceptions
lic
30 New
635-36,
(1961)
81 S.Ct.
ary judg- the trial court rendered jury’s ment accordance with verdict. 12, 2001, in January open Mon- On real, apparent for reasons not from the record, of signed his he requested be allowed to immediately. begin serving his sentence also attorney signed His On waiver. 2001, however, 23, January Monreal’s at- torney appeal, of and on filed notice January himself filed a Monreal se of Neither pro appeal. notice notice of the waiver acknowledged existence 20, 2001, appeal. August On brief, and original appellate filed on his 4, 2001, filed an September amended September 2001 the State brief. On appeals filed a court of motion appeal. dismiss Monreal’s Monre appeals The court of dismissed waiver; on of the al’s the basis (Tex. Monreal v. No. 02-01-057-CR Worth, Worth, 25, 2001), Curtis, A. Fort order Christopher App.-Fort October appeals The court of Appellant. dismissing appeal. general relied rule that a valid Windsor, DA, Ann Fort Debra Asst. binding on the defen waiver of Worth, Paul, Atty., Aus- Matthew State’s prevents appealing any dant and him tin, for State. of the trial court. issue without the consent The noted that Monre appeals Id. court of as al his waiver invalid neither disavowed OPINION from the trial nor obtained appeals appeal. court Id. J., HOLCOMB, opinion of delivered the the fact that Monre considered irrelevant KELLER, Court, P.J., which part al’s waiver was into as not entered MEYERS, PRICE, WOMACK, agreement with Id. the State. COCHRAN, KEASLER, HERVEY, and JJ., joined. granted to determine wheth- We review dismissing er the erred This presents question his Monreal’s based on waiver. valid, non-negotiated whether a appeal- defendant from prevents contends, Court, Monreal Before this ing any of the issue without consent below, rule that a valid he did trial court. We hold that does. a defendant appeal prevents of the guilty, appealing without consent pled Alfredo Monreal Jr. apply should not charge aggravated trial court does not or plea bargain, He ar- robbery. jury non-negotiated A waivers suggesting otherwise eighteen years gues precedent confinement. On Janu- distinguishable either in- defendant from without the con negotiated volved waivers or because it sent court. Id. This rule had failed to arguments address the he now implied been in Reed v.
advances. 680, 682 (Tex.Crim.App.1974), where the *3 defendant claimed his second trial was a presents Monreal arguments. three He nullity the trial court did not have first, argues, applicable the rule is not authority grant a new trial after he to non-negotiated pur- waivers because the appeal, waived we held that a trial which, pose of alleges, the rule he is to permit perfect court can a defendant to hold defendants to their bargains inap- —is appeal despite a valid of appeal. plicable where the defendant did not waive The rule was then in adopted parte Ex appeal pursuant to an agreement. He ar- Dickey, 543 S.W.2d gues, second, good that no reason exists to 100 (Tex.Crim.App.1976), where the defendant appeal waived support applying the rule in situations pre-trial but confirmed the waiver after where the defendant did not waive sentencing, and we found the waiver was pursuant to an agreement. argues, He made knowingly, voluntarily, and intelli third, that applying the non-negoti- rule to gently prevented and therefore the defen ated waivers of would create bad appealing any dant from issue unless the policy. trial court appeal. consented to the In alternative, that, In the argues Monreal rule, adopting rejected this an alterna if non-negotiated even waivers of proposed tive rule dicta Abron v. prevent a defendant appealing with- 531 S.W.2d 645 (Tex.Crim.App. court, out the consent of the trial the court 1976), that a valid waiver of appeal is in denying erred request his “effective unless and until a timely notice stay to allow him to seek con- is filed.” sent from the trial court appeal. Although long we have held that a valid I. The Rule appeal prevents waiver of a defendant Article 44.02 of the Code of Criminal without the trial court’s Procedure provides consent, defendant the we have never explicit addressed However, to appeal. Article 1.14 of that ly applies whether the rule to negotiated provides same Code that a defendant and non-negotiated waivers alike. In our non-capital felony may involving appeal, cases waiver of where the to him by secured law. opinion explicitly does not state whether existed, an is not clear Tabor, In parte Ex pled whether the waiver was pursuant guilty before the filed a written Tabor, an agreement. parte See Ex appeal, waiver of and then filed a timely 945; parte Hogan, S.W.2d Ex 556 S.W.2d Tabor, appeal. parte notice of Ex (Tex.Crim.App.1977); Johnson S.W.2d 946 (Tex.Crim.App.1978). Af State, 556 816 (Tex.Crim.App. S.W.2d ter he was arrested because he was erro bond, neously out on an appeal he chal lenged the denial of his Purpose II. Behind the Rule application corpus. for writ of habeas case, address, first, Id. In that we found the waiver was We Monreal’s contention valid, applied and we that a purpose rule valid that the of the rule is prevent waiver of appeal, voluntarily, one made appealing despite defendants from receiv- knowingly, and intelligently, prevent will ing bargain the benefit of and that there- Thomas, apply non-negoti- (Tex.Crim.App.
fore the
does not
Townsend,
1977);
parte
Ex
his was Therefore, prece- both Blanco and theory on decision Blanco was based distinguished, ap- dent which it was into agreements that defendants who enter that a valid plied general proposition gain should not be allowed to the benefit prevent will a defendant renege their agreement and then trial court’s appealing without agreement the consent part of that waivers did hold consent. Blanco not of the trial court. to an pursuant must be made holding discuss a Although Blanco does explained why agreement binding; to be rele- agreement, defendant an more pursuant waiver made pre-sentencing between the instant vant distinction and followed with the State waiver, timing of the and Blanco is the may not encounter the by the trial court addressed because Blanco in Thom- concerns that arose validity same by pre-sen- defendant could be bound raised in concerns as and Townsend. The tencing appeal, waiver of bind- do not arise in and Townsend Thomas made ing nature of waivers after sentenc- waivers, these de- post-sentencing ing. timing of were based on cisions waiver. pre- had held that
Before Therefore, support Blanco does pre-sentencing were not trial and waivers not, purpose of contention that the they could Monreal’s binding on hold to their law, the rule is to defendants knowingly, as a matter of bargains. voluntarily, intelligently. parte Ex Appellate however, B. Rule provided, Procedure before the defendant 25.2(b) upon who has been convicted either his plea guilty plea of nolo contendere argues Monreal also Appel- that Rule of court, before the court and the upon 25.2(b) late Procedure embraces the same defendant, pun- election of the assesses purpose of holding a defendant to his bar- punishment ishment and the does not gain as does the rule holding exceed the recommended to a valid waiver of unless the trial prosecutor agreed consents the defendant attorney may prose- defendant and his waiver, despite the and should therefore cute his appeal, he must have be persuasive regarding whether non-ne- except on those mat- gotiated waivers should be treated the ters which have been raised written same as negotiated waivers. prior motion filed to trial. 25.2(b) Appellate Rule of pro- Procedure vides: proviso This a legislative response Rule, Helms Helms
[I]f the is from established in judgment ren- dered on the plea guilty (Tex.Crim.App. defendant’s S.W.2d 925 *5 1972), or nolo contendere under that a plea guilty Code of Crimi- where of is know procedure 1.15, nal ingly, made, article and pun- voluntarily, intelligently the ishment assessed did not all non-jurisdictional exceed the including defects by recommended the prose- claimed deprivation process of federal due agreed defendant, cutor and by to are waived. The Helms Rule was clarified the (A) the notice must: specify (Tex.Crim. the in Youngv. appeal defect; (B) jurisdictional is for a App.2000), where we held that with or specify that the substance of appeal agreed without an recommendation on was by raised written motion and ruled punishment, plea a valid guilty of or nolo trial; (C) on before state that contendere waives or forfeits the to granted trial court to only a claim of error when the judgment guilt indepen was rendered 25.2(b), 40(b)(1), Rule formerly Rule in- dent of and not supported the error. corporated a proviso the Legislature added to Article 44.02 of the Code of Criminal In Young, we recognized that the 1977 Procedure in 1977. ap- amendment “authorized conditional
First, we note that
peals
Code of Criminal
only
plea-bargained cases because
44.02,
1925,
Procedure article
as
enacted
plea-bargain
defendant who had no
stated
defendant
in any
“[a]
gov-
with the State was still
criminal action
has the
the Helms Rule and could
erned
pre-
under the rules
prescribed.”
hereinafter
appeal only by
serve issues for
pleading
(Acts 1965,
guilty.” Young,
Tex.Code
P.
Grim.
article 44.02
Although be correct that Crim. plea. to withdraw the Tex.Code purpose 26.13, provisions embrace the same acts Proc. article as amended general challenges, rule he is not P. 748 ch. effective leg. 1977 65th purpose holding this, the defendant and at the August 1977. Prior *6 a defendant has waived a bargain. Reed, Dickey, Where in and time of trials 1.15 Code of jury Tabor, under Article to statutory no mechanism existed Procedure, agree- a plea Criminal enters pleas, agree and recognize negotiated ment, does and the courts out ments were often hidden from recommendation, agreed not exceed the the waiver of fear court would find is of what he will the defendant aware involuntary it was induced pre- can bargain and he receive from State, See, 975 promise. e.g., Bushnell v. legal appeal by serve contested issues for (Tex.App.-Houston 14th S.W.2d pre-trial obtaining ruling on written Dist.1998, ref'd). However, many in pet. defendant without motion. A similar time, we encour openly cases around this what er- agreement could not know plea See, e.g., Williams aged agreements. such there- might plea rors after the and occur State, v. S.W.2d pre- in a fore could not raise those issues after (Tex.Crim.App.1972)(disposition Therefore, as in trial motion. only essential but desir agreement not in exchange not be the benefits State, able); 481 S.W.2d Erdelyan having agreement, consequence but not (Tex.Crim.App.1972)(Legislature agreement, the fact that the defendant an regarding adopted recommendation yet after the would know what would occur ask agreements, but courts could plea discrepancy be- plea, may explain that agreement); of an about existence non-bargaining de- tween and bargaining 522 S.W.2d Guster fendants. bar plea (Tex.Crim.App.1975)(better no 25.2(b) open to be in the so there gains may suggest a dis- parallel
Rule sham). negotiated treatment of tinction in the Freeman v.
Determining developed on no during pet.). this time relied the existence of (Tex.App.Amarillo agreement might an difficult. Howev- be argument reject Monreal’s We er, reality Dickey, recognized to of the rule hold defendants purpose plea bargaining process and the fact bargain. to their of appeal may the defendant’s waiver tool, but in bargaining doing used to III. Reason to hold defendant waiv- so, procedure requiring stated that the er rights prior the defendant to such to because, trial should be condemned under We turn next to Monreal’s contention time, put the laws at that “the defendant is good support ap that no reason exists to fearing in the if position of he does the rule in situations where the plying rights may waive such affect the appeal pursuant defendant did not waive to punishment assessed result in a denial agreement. points an Monreal first to if probation, any.” of his motion for Dick- can rights defendants reinvoke after some ey, 543 Having implied the waiver, such as the to remain silent right might pursuant have made been attorney. the right to an We note an agreement, knowing, we relied right that both the and the counsel voluntary, and nature of intelligent rights. to remain silent are constitutional Dickey after sentencing Additionally, not. appeal is find that Dickey was bound his waiver Procedure the Code of Criminal article of appeal. Id. at 104. 1.051(h) provides for defendant’s abili Moreover, determining when defen ty to withdraw the to coun dants were bound their ap waivers of procedure No the Code provided sel. peal, consistently courts of have for a a valid waiver defendant withdraw expressed rulings their terms of wheth provide sup does er knowingly, voluntarily, the waiver was argument for his port made, and intelligently even when they should analogous acknowledged the had waived remain silent. Nor Monreal distin does right pursuant *7 rights the from other guish appeal See, had e.g., received some benefit. Dor may not after waiver. that be reinvoked State, sey v. (Tex.App.Texar 84 8 S.W.3d Finally, urges the rule us to rec Monreal 2002); State, kana v. 9 Schneider S.W.3d allow a ognize adopt or defendant 1999); 466 (Tex.App.Fort Reyna v. Worth making a valid waiver of to avoid State, (Tex.App.San 993 142 S.W.2d Anto the waiver without limitations on the State, 'd); pet. nio Turner v. ref right. reassertion of the Even when we 1997); (Tex.App.-Waco S.W.2d 789 Perez necessary process by found it a provide Paso (Tex.App.El S.W.2d 568 a defendant reassert the which could 1994). Although appeals’ some waiver, a jury to a trial after constitutional opinions, the courts have referred to “hold right, required we the defendant re that ing bargain,” the defendant trial permission from the court. quest conclusion that the defendant should be (Tex. S.W.2d 217 Marquez pursuant bound to a waiver Crim.App.1996). on bargain determining has rested first Second, equity that Monreal contends was valid and defendant’s waiver a support defendant to a only holding then on the defendant re does whether non-negotiated waiver the State bargain. ceived the benefit of the See because require on error therefore rely have the a not and does a would neither remedy. non-negotiated waiver nor able to dem- prejudice onstrate the withdrawal Second, disparity argument, Monreal’s a failed such waiver unless defendant correct, logically if even fails to establish However, Monreal timely to file notice. that defendants should not be bound support argument no that provides his non-negotiated of appeal, waivers rely have the State does not scope addresses instead trial or explicit, an affirmative waiver authority to allow court’s the defendant to that re- argument’s logical
for his premise appeal despite the waiver. Because Mon- for such required liance is a waiver consent, de- request real did not was not Monreal ar- binding. Additionally, while consent, nied and not refused review that the State would be unable to gues denial, disparity argument is of such prejudice resulting the with- show review, our beyond scope current explicit non-negotiated drawal an of what and we cannot reach issue a deciding that appeal, assuming whether trial court should consider or required, prejudice such reliance and were regarding consent is trial court’s decision no situation persuaded we are not that reviewable. inequitable arise in could which would be to choose When asked between having
to allow defendant to after stating binding that a waiver entered valid unless and the defendant files no- until Finally, suggests there exists a stating and a rule that a tice crim- prevent inducing courts from need binding on the valid waiver of ap- inal defendants to waive the prevent will the defendant and losing after at trial when the waiver peal without the consent only prosecutor. benefits the court and the consistently opted for we have However, fails to demonstrate such parte Dickey, Ex the latter. See exists, that the is not suffi- 99; Johnson, 816; a need need Ex S.W.2d S.W.2d met, benefits ciently Tabor, 945. This deci- parte that allow- prosecutor, the court been based on sion never non-negoti- to avoid valid ing defendants some ex- received benefit appro- waiver, ated waiver of would be change for rather on but prevention. whether, method of priate states, the rule the waiver was knowing, voluntary, intelligent, Policy IV. Id.; valid. and also thus See Therefore, argument we reaffirm Finally, address Monreal’s *8 negotiated appeal, waiver non-negotiated the to valid of applying prevent a defendant policy non-negotiated, will appeal of would be bad be- or waivers the consent the remedy without provide cause it hollow of defen- trial court. disparate and lead treatment to dants. in the argues alternative by denying erred his
First, appeals the court of authority recognizing sought he appeal to his while appeal request stay to trial court to allow defendant appeal. to was not court’s appeal despite valid However, until af- Monreal waited a defen- remedy to provide intended to to re- appellate he had filed his brief right to ter validly who waived dant to appeals’ permission validly waiving appeal quest appeal, because amend the notice of in order to right defendant waives his to with- request the trial court’s permission any to al- out the benefit consideration or waiver, him to appeal despite state, low his promise valid from the he should be al- appeals the court of did not err in dismiss- unilaterally lowed to withdraw that waiver ing appeal. Bayless See 91 by timely filing of a appeal, notice of (Tex.Crim.App.2002). with or the permission of the trial court. We affirm the court appeals’ dismissal
of Monreal’s appeal. Appellant argues further that he should required get permission to from the JOHNSON, J., concurring filed a trial court place because this would a de- opinion. who mercy fendant wishes to at the JOHNSON, J., concurring. court; of the trial if the trial court wanted prevent appeal, defendant’s Appellant pleaded guilty jury to a simply court could Appel- refuse consent. aggravated offense of robbery. The jury lant asserts that there no good reason his eighteen years why 5, 2001, confinement. a defendant should January subjected On the trial court entered its such “whim” judgment of the trial court unless accordance with jury’s 12, January verdict. On defendant has waived his part as a 2002, appellant and attorney his some signed the state. and filed with the trial court a written Finally, appellant analogizes the waiver
waiver of appellant’s right right to the waiver of the requested that he be allowed to commence right to counsel or to remain silent. He serving his immediately.1 sentence On asserts that because a defendant can uni- 23, 2001, January appellant’s attorney filed laterally withdraw a right general notice of appeal with the court of silent, counsel or to remain appeals. January On appellant should also unilaterally be able to with- pro filed a se notice of appeal. Neither draw the waiver of appeal. appellant nor his attorney sought permis- sion from the trial court to file a notice of Appellant’s argument first characterizes appeal and neither notice asserted that the the waiver of the being written waiver was involuntary. coerced or similar to a contract with the state. This The state moved to appeals have the dis- characterization is incorrect. pro- Our law missed. The court of appeals agreed that vides that “[t]he defendant a criminal the written binding waiver was and dis- prosecution any may offense appellant’s missed appeals. Monreal v. rights to him by except secured law that a State, No. 02-01-00057-CR (Tex.App.-Fort capital felony Worth, delivered October jury waive the of trial by only in the 1.13(b) granted permitted
We manner appellant’s petition for dis- Article of this 1.14(a) cretionary review to decide whether the code.” Tex.Code Crim. PROC.Art. (2002). in holding erred that he There requirement is no had waived Specifical- reap state a benefit to make a *9 ly, that, appellant claims in a binding upon appellant case where a or that the state 1. appeal. There is no other indication in the record as why appellant right to chose to waive his to
624
any potential
involved
waiver at all. The
and whether
errors had oc-
in the
court,
waiver,
entering
to
curred
to
prior
is to the trial
not
the state.
waiver
could
later claim that the
was
long
This
held that a non-
Court has
Id.
involuntary.
appellant
Because
was
can
make a val
plea-bargaining
likely
fully
consequences
aware of the
right
long
id waiver of the
to
so
waiver,
was
the state
entitled to insist
complet
it is done
the trial court
after
bargain
though
on the
of its
even
benefits
State,
e.g.
ed
Rankin v.
sentencing. See
trial
prior
the waiver had been made
to the
(Tex.Crim.App.2001); Ex
This Court has also that where plea that exists agreement when exists, regardless a valid waiver of wheth- permission of the appellant must seek plea agreement er there was a a valid waiv- appeal following trial court to state, a defendant who wishes to er. never been the law in this This has must either receive the jurisdiction. prove appeals trial court or coerced or involun- that the waiver was that his Appellant has claimed waiv- Tabor, e.g. tary. parte See Ex 565 S.W.2d and his involuntary, er was coerced 946; Hogan, Ex at parte at S.W.2d would requiring permission assertion State, 818; 353; 556 S.W.2d at Johnson v. subject trial court him to the whim of the State, S.W.2d 389-90 Hurd theory, merit. His novel is without Bouchillon v. (Tex.Crim.App.1977); any where does not receive bene- the state (Tex.Crim.App.1976). unilater- fit from a waiver a defendant can waiver, ally unsupported withdraw the upon relies Blanco v. Appellant that a has not held (Tex.Crim.App.2000) in assert- law. This Court S.W.3d ignore a waiver of plea simply defendant can ing that the existence of straight go the character of waiver. This impacts per- Blanco, seeking In appel- reliance is unfounded. today we agreement with mission of the plea entered into a lant Holding that to do of his continue to decline so. the state that included waive a writ- unilaterally can appeal. After the trial court ac- by the ten plea bargain, appellant filed a cepted the ren- timely fifing a notice He claimed that his notice binding waiver der an otherwise valid and waiver was not valid because was not have been meaningless. This could prior sentencing. it enact- legislature when the intent of appel- This held Court 1.14(a).2 plea bargain ed Art. knew details of lant 1.14(a): prosecution for de- fendant in a criminal "The 2. Tex.Code Crim. Proc. Art. *10 Cornelius, DA, Houston, Appellant Shirley also asserts that the with- Asst. Paul, Austin, right Atty., drawal of a waiver of the Matthew for State’s should be treated like the withdrawal State. right to counsel or the to remain Appellant provided
silent.
has neither
this
OPINION
briefing
any
Court with sufficient
nor cited
authority
support
in
of his claim. It is not
PER CURIAM.
appellant
general
sufficient that
raise a
Appellant
charges
was convicted of two
support
constitutional doctrine in
of his
punish
aggravated kidnapping,
State,
request for relief. Rhoades v.
ment was
at confinement for
(Tex.Crim.App.1996).
It
twenty-five years in each case. The Court
upon appellant
specific
is incumbent
to cite
Appeals
affirmed the convictions. Pat
authority
legal
provide legal argu-
and to
terson v.
826 (Tex.App.-
84 S.W.3d
upon
authority.
ments
based
Houston
Appellant
[1st Dist.]
seeks
Rhoades,
ed this it did not have the benefit of opinion our in Brown v. 2003),
180 (Tex.Crim.App., where this meaning “voluntarily” Court addressed 20.04(d). Accordingly, grant Section ground Appellant’s petition, two of vacate Appeals’ judgment, the Court of and re- Jimmy Ray PATTERSON, mand the cause to that court for reconsid- Jr., Appellant, light eration in of Brown. The STATE of Texas. 1767-02,
Nos. 1768-02.
Court of Appeals Criminal of Texas.
March Northcutt, Houston, Ap-
Frances M.
pellant. may jury only permitted offense secured to him in the manner Article except capital law defendant in a 1.13(b).” felony waive the of trial