*1 The trial authority court acted without Reginald NIX, Appellant, Keith this suspend applicant’s Why sentence.
was that order not under void Seidel? denying The Court’s second reason for applicant
relief to the is: of Texas. STATE Indeed, probation any- since he received No. 793-00. not, way, eligible imagine it is hard to illegality probation af- how Texas, Court of Criminal plea. fected the voluntariness of his En Banc. event, certainly it did contribute conviction or punishment. his Rath- June er, just it did the opposite—detracted
from him punishment by allowing his
suspended sentence when he was not
entitled to one. Williams fails to show illegal grant
that he harmed probation. good argument. Unfortunately
This is a rejected just parte
the Court it in Ex
Busby.13 granted probation
The trial court shock jurisdiction Busby period when its expired. Busby
had After violated probation,
conditions of his he asked this give against him credit his sen- enjoyed
tence for the time he had Although I
probation. thought argu- laughable
ment was for same reasons gives today,14 majority my
the Court it, accepted he “should not saying
brethren penalized” asking probation.15
Today appli- the Court refuses relief to the Busby.
cant without mention of Busby
Are Seidel and different so, not, If they
case? If how? are disa- as Heath is?
vowed
73,797,
Busby,
(Tex.Cr.App.
2001). J., (Womack, Busby,
14. See
Reginald pro Keith se. DA, Anderson, Hous- Bridget R. Asst. Austin, Paul, ton, Atty., Matthew State’s for State.
OPINION P.J., KELLER, opinion delivered the WOMACK, in which the Court HOLCOMB, KEASLER, HERVEY, and JJ., joined. misdemean- no contest to
Appellant pled adju- theft on deferred and community supervision. No court dication pro- made of that reporter’s record was from ceeding,1 appeal was taken within the time the trial court’s decision subse- prescribed by Appellant limits law. the conditions of his com- quently violated munity guilt his supervision, cated, year in and he was sentenced to one jail. sentence, appellant appeal of his
On
had been
original plea
that his
complained
right
to counsel
taken in violation of
following
jury
to a
trial
right
and his
respects:
(1)
inquire
the trial court did not
in-
knowingly and
into whether he had
counsel,
right
waived his
telligently
(2)
violated the Code
that the trial court
and the state and
Procedure
of Criminal
advising him
by not
federal constitutions
dangers
self-representation,
(3)
jury trial
that his waiver
initially
the trial court
invalid where
attorney
where
appoint
did not
plea.
defendant’s
waiver of the
1. The record contains a written
reporter
record
to have a court
Appellant
effectively
‘regular’ community supervi-
had not
waived
counsel.2
sion.”
relating
contends that caselaw
Appellant
were
These claims
not raised before the
regular community supervision recog-
trial court at the
hearing,
nor
exceptions
general
rule that
nizes
they
were
in appellant’s
made
motion for
original plea
cannot be attacked on an
Citing
new trial.
decision Manuel
proceedings.
of the revocation
Be-
State,3
the Court of
dismissed
caselaw,
cause Manuel is based
for want of
exceptions
concludes that these
review,
discretionary
On
appellant ad-
adjudica-
carry
must
over to the deferred
(1)
vances two contentions:
that his claims
*4
particular
tion context. This
contention is
on appeal fall within a “fundamental error”
regular community
well taken. Two of the
(2)
Manuel,
exception to
holding
and
supervision
sup-
cases cited Manuel to
that Manuel n
holding
should
be ap-
not
port
Traylor—
its
and
—Whetstone
plied retroactively. We will affirm.
explicitly recognized that there were ex-
ceptions
general
to the
rule.7 To the ex-
to Exceptions
A.
“regular” probation
recog-
tent that
cases
exceptions,
exceptions
nized
these
would
Manuel,
In
we stated
“a
defendant
logically carry
adjudi-
over to the deferred
on deferred
community
cation context.8 But
can derive
supervision may
relating
raise issues
agreement
no comfort from our
him
the original plea proceeding, such as evi-
point
on this
because his
on appeal
claims
dentiary sufficiency, only in appeals taken
recognized excep-
do not fall within the
when
community
deferred
su-
tions.
pervision
imposed.”4
is first
In arriving
conclusion,
at that
we
recognize
relied
caselaw
excep
Our cases
two
involving “regular”
community supervi-
tions to the
general
exceptions
(1)
sion.5 This caselaw was relevant because
judgment”
we shall call
the “void
ex
(2)
legislative
determined that “the
ception,
intent
corpus” excep
“habeas
in enacting
44.01(j)
Article
permit
was to
tion. The
judgment exception recog
void
defendants to
from deferred
nizes
there are some rare situations in
cation community supervision
judgment
to the same which a trial court’s
is accorded
(ie.
extent
rights
with the same
respect
complete
power
and re- no
due to a
lack of
strictions) as
permitted
defendants are
judgment
question.
to render the
A
2, Manuel,
2. Nix v.
No.
(citing
14-97-00377-CR at
Today
Warren
de-
defendants who were
gave
those cases held
Carter
extent
ap-
the same
to
corpus
claims could be raised
habeas
given
for defendants
peal
existed
actually
hearing
at a
without
revocation
re-
As we have
regular probation.29
corpus
filing
application.25
a writ of habeas
opinion,
marked
However,
appel-
old
earlier
even under the
to
Legislature
intended
lant’s
fail because those
observed that
claims would
permit
court’s
defendants
brought
were not
trial
deferred
claims
proceeding.26
at the
to the same extent —with
attention
rights and restrictions-as defendants
same
Retroactivity
B.
regular probation. We concluded:
given
in-
any “Certainly
Legislature’s
it was not the
question for
The threshold
tent,
44.01(j),
enacting
permit
rule
Article
retroactivity analysis is whether the
legality
a “new” rule.27
two reviews
articulated is
fact
order,
at the time de-
determining
a rule
one
standards for
whether
possessed
appeals
when the courts
Carter
arguably
(Tex.Crim.App.1982)(trial
court erred in re
This Court
criminal
elicit evi
fusing
power
to allow the defendant to
a claim on direct
had the
treat
gave
support
corpus,
of a claim
counsel
dence
a writ of habeas
whether
as
level,
plea pro
ineffective assistance at
litigated
at
trial
*7
ceedings);
Warren v.
appeals
no
au-
the
of
such
but
courts
ap
(Tex.Crim.App.1988)(court of
614-615
appeals’s appel-
thority.
a court of
To invoke
peals
refusing
claim of
erred in
to address
corpus
jurisdiction over
matters
late
habeas
origi
counsel at the
ineffective assistance of
rule,
must first
under the old
a defendant
was liti
plea proceedings
nal
when the issue
court's
have invoked the trial
hearing).
gated at the revocation
fashion,
litigate,
Appellant
failed
Without even a
the trial court.
before
Warren,
Carter,
557;
at
24. See
corpus
before the
"functional” writ
habeas
at 615.
court,
appellate
lie
jurisdiction could
trial
no
today
Appeals.
holding
Our
Court
(Tex.Crim.
25.
672 Only appellate had in a few intermediate recognized
If we never the issue Dillehey, might clearly addressing we inclined hold that were decided issue Dillehey practice of at- arguably sanctioned the between our decisions in post-adjudi- in a tacking original plea 1992, Manuel. court held Dallas in- we decided cases cation when that matters could be raised original plea on the merits instead volving such attacks in that post-adjudication appeal,36 a issuing appeals. orders to dismiss the the contrary court came to conclu- later But, having the issue as an highlighted courts that sion.37 Two other have held accept open question, we cannot raised in a original plea matters could be address the issue failure to three oth- post-adjudication appeal38 while approval other cases a tacit constitutes matters can- er courts held such Manuel. contrary set forth in rule to that stage.39 not be raised at that may know that Practitioners should that find did Accordingly, we for decline to address an issue a case rule, need not not create a “new” and we reasons, including number the fail- analysis.41 balancing conduct Stovall40 adequately raise brief issue ure to is The of the Court of Moreover, recog- in 1996 question. affirmed. pre-adjudica- for a provision nized that the 44.01(j) in Article could have WOMACK, J., a concurring a post-adjudication ap- adverse effects on opinion. peal.35 JOHNSON, J., dissenting opinion filed a Manuel, Further, prior there existed MEYERS, PRICE, longstanding practice no had been HOLLAND, J.J., joined. uniformly by the lower courts. approved 905, State, State, 711, (Tex.App. 906 987 S.W.2d 35. See Watson v. 714 — Waco 1999, (Tex.Crim.App.1996)(plea-bargain pet.). de no could, appellate ferred rules, under the ability on result in a limitation Denno, 293, S.Ct. 388 U.S. Stovall v. imposed the sentence 1967, (1967); Tay- see also 18 L.Ed.2d community supervi of deferred lor, S.W.3d at 681. sion). unnecessary disposi Although case, note that had tion of we do Watson "disagrees” our conclu- dissent with The given time been decided at the retroactivity analysis unneces- sion adjudication. deferred sary "[djespite we never the fact that because error' explicitly that the 'fundamental held 660, 663 36. Edwards the context deferred applied rule 1992, pet.). (Tex.App. no — Dallas since, cation, logic Manuel dictated so above, explic- holding was as noted Manuel’s 571, 37. Smith ‘regular’ itly predicated equating com- on its 1997, pet.). (Tex.App. no — Dallas munity supervision appeal.” at-. purposes of Dissent (Tex. 38. Moss point. Appellant's claim dissent misses ref'd); pet. Holiday v. App.—Austin a new Manuel articulated this case is that (Tex.App.— claim to be we have shown that pet.)(opinion [1st Houston Dist.] articulate merit. While Jordan does without rehearing). *9 exceptions prohi- narrowing to the new rule— origi- collaterally attacking the against 143, bition Alejandro 957 S.W.2d 144 engage 1997, plea upon in the ref'd); nal revocation —we pet. (Tex.App. Corpus Christi — retroactivity analysis in that case. appropriate S.W.2d Manuel rate, under 1998), appellant's claims fail affirmed, And at App. Worth — Fort replaces. (Tex.Crim.App.1999); the old rule that Jordan Munson v. S.W.2d 658 WOMACK, however, J., a concurring Today, majority denies re- by overruling opinion. appellant lief to our “funda- corpus” case mental law. error”/“habeas Today appel- holds that Court Ante, 669-70; Jordan, 54 at at S.W.3d point of within lant’s does not fall my I have dissent to this 784-87. noted judgment” exception the “void to the rule Jordan, 54 at action. appealing error that against occurred (Johnson, J., dissenting). probation granted, when in was probation after is revoked. See ante at majority then on to goes declare join I opinion 667-69. Court’s with today its nor neither decision understanding holding does not rule,” a “new that a created so retroactivi- consideration, case, in a of proper foreclose Ante, ty unnecessary. is analysis at 670- whether be a judgment” there should “void disagree. 72. I the fact that Despite exception. explicitly never held “fundamental applied error” rule context of de- JOHNSON, J., MEYERS, joined by adjudication, logic of ferred Manuel so HOLLAND, JJ., PRICE and dissenting. above, since, as dictated noted Manuel's explicitly predicated on its case, In the instant equating “regular” community supervision and, following on deferred ad- purposes with deferred of judication guilt, of his he chal- brought appeal. lenges original plea, on al- based leged right violations to his counsel foregoing, my Based as well as to a jury Today, trial. majority Jordan, I dissent dissent.1 precludes this court him bringing I such claims. Because believe that such may brought,
claims I respectfully dis-
sent. elsewhere,
As I have noted law case
establishes that on from an order (i.e.,
revoking probation “regular” commu
nity supervision), permitted a defendant is bring challenge original convic SHEPHERD, Ex Parte James Carol tion when challenge such a “funda Applicant. mental error.” Jordan v. (Johnson, 50440-01, 785-86 (Tex.Crim.App.2001) Nos. 50440-02.
J., dissenting). equated Because Criminal Texas. “regular” com munity supervision for purposes appeal, Feb. logic dictates that this same funda rule of error apply mental de context of adjudication. See Manuel v.
1999); Jordan, pro at Shepherd, 784-86. James Carol se. majority questionable light 1. The also that "a is states statement Seidel, only very usually parte due void rare recent decision Ex Court’s situations — Ante, jurisdiction.” (Tex.Crim.App.2001). lack of at This