Case Information

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Appellent has failed to allege an error that could render the original judgment of conviction void. All three of his claims turn on the theory that he was denied counsel or that a waiver of counsel was involuntary. 20 but we cannot ascertain the truth of appellent's claims on this record without a transcription of the plea proceedings. Although the plea papers show-appeitant representing himself pre se, a transcript of the plea hearing might have shown that appellent voluntarily waived counsel and was informed by the trial court of the dangers of self-representation. 21 Appellent cannot use the void judgment exception to gain relief.

The habeas corpus exception essentially involves the litigation of a writ of habeas corpus at the probation revocation proceedings. Because probation is not considered to be a 'final' conviction, an application for writ of habeas corpus filed during the pendency of revocation proceedings would be returnable to the trial court, whose ruling would be reviewable by a court of appeals and, ultimately, subject to a petition for discretionary review from the Court. 22 Had the application been filed separately, then, the same trial court would be responsible for resolving both the habeas application and the revocation proceedings, and these two proceedings would follow the same appellate path. We have held that, in the interest of judicial economy, (65 S.W. 3d 676) the probationer need not file a separate writ application but may mount his attack during the revocation hearing. 23 To invoke the habeas corpus exception on appeal, the defendant must show (a) that the claim is cognizable on a writ of habeas corpus and (b) that the defendant attempted to litigate the claim at the revocation proceeding. 24

Today in Jordan, we overrule Warren and Carter to the extent those cases held that habeas corpus claims could be raised at a revocation hearing without actually filing a writ of habeas corpus application. 25 However, even under the old rule, appellent's claims would fail because those claims were not brought to the trial court's attention at the revocation proceeding. 26 B. RetroactivelyThe threshold question for any retroactively analysis is whether the rule articulated is in fact a 'new' rule. 27 The standards for determining whether a rule is ' 'new' vary, depending upon whether the rule is a purely court-made rule or an interpretation of a statute. 28 So, we must determine whether the rule in Manuel derives its authority from our interest judicial power or from statutory authority. We find that the rule is derived from statute, in Dillehey v. State, we found that certain amendments to Article 44.01 - that became effective in 1987 - gave defendants who were placed on deferred adjudication the same right to appeal that existed for defendants given regular probation. 29 As we have remarked earlier in this opinion, Manuel observed that the Legislature intended to permit deferred adjudication defendants to appeal to the same extent - with the same rights and restrictions - as defendants given regular probation. We concluded: "Certainly it was not the Legislature's intent, in enacting Article 44.01(j), to permit two reviews of the legality of a deferred adjudication order, one at the time deferred ( 65 S.W. 3d 671) adjudication community supervision is first imposed, and another when, and if, it is later revoked." 30 We made clear in Manuel that the rule announced therein was an interpretation of the Legislature's amendment to Article 44.01 based upon the discernable legislative intent.

Having found that the rule articulated in Manuel was a statutory interpretation, we turn to the standards for determining when a statutory interpretation constitutes a new rule. For an interpretation of a statute to be considered a new rule, that interpretation must have been preceded by an inconsistent interpretation viewed by this Court as authoritative. 31 To be viewed as authoritative, the inconsistent interpretation must be either (1) a rule articulated in prior precedent from this Court, (2) a practice arguably sanctioned in prior cases from this Court, or (3) a longstanding practice that lower courts had uniformly approved. 32

Under the guidelines set forth, no prior inconsistent, authoritative interpretation ever existed. This

TINCIDES

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Court has never issued an interpretation of the amendments to Article 44.01(j) that conflicts with Manuel. In Dillehey, we discussed the possibility that our interpretation of the statute might give the defendant a right to two appeals of the plea proceedings, but we expressly held that such a question was not before us. Finally we note the application of our holding to Art. 42.12 § 5(b)'s provision that after adjudication of guilt a defendant's appeal continues as if the adjudication of guilt had not been deferred. A defendant who has appealed, say, a motion to suppress after he received deferred adjudication, who seeks to appeal that same matter again after he is adjudicated guilty, may under the plan wording of the article be authorized to do so. That question is not before us in this case. 33 Since Dillehey but before Manuel, we have decided several cases involving attacks on the original plea in an appeal after adjudication, but none of these cases addressed the propriety of raising original plea issues in a post-adjudication appeal. 34 (65 S.W. 3d 672) If we had never recognized the issue in Dillehey, we might be inclined to hold that we arguably 'satisfailled the practice of attacking the original plea in a post-adjudication appeal when we decided cases involving such attacks on the merits instead of issuing orders 60 donnos the appeals. But, having highlighted the issue as an open question, we cannot accept the claim that our failure to address the issue in other cases constitutes a tacit approval of a rule contrary to that set forth in Manuel. Practitioners should know that we may decline to address an issue in a case for any number of reasons, including the failure to raise or adequately brief the issue in question. Moreover, in 1986 we recognized that the provision for a pre-adjudication appeal in Article 44.01(j) could have adverse effects on a post-adjudication appeal. 35 Further, prior to Manuel, there existed no longstanding practice that had been uniformly approved by the lower courts. Only a few intermediate appellate cases clearly addressing the issue were decided between our decisions in Dillehey and Manuel. In 1992, the Dallas court held that original plea matters could be raised in a post-adjudication appeal. 36 but that court later came to the contrary conclusion. 37 Two other courts have held that original plea matters could be raised in a post-adjudication appeal 38 while three other courts have held that such matters cannot be raised at that stage. 39 Accordingly, we find that Manuel did not create a 'new' rule, and we need not conduct a Stovall 40 balancing analysis. 41 The judgment of the Court of Appeals is affirmed. KELLER, Presiding Judge Date delivered: June 27, 2001

Concur by:

WOMACK Today the Court holds that the appellent's point of appeal does not fall within the "void judgment" exception to the rule against appealing an error that occurred when probation was granted, in an appeal after probation is revoked. See ante, 2001 Tex. Crim. App. LEXIS 52, "5-6. I join the Court's opinion with the understanding that that holding does not foreclose consideration, in a proper case, of whether there should be a 'void judgment' exception. En banc, Delivered June 27, 2001. Dissert

*8 Dissent by Johnson Johnson, J., joined by Meyers, Price and Holland, J.J., dissenting In the instant case, appetlant was placed on deferred adjudicithin and, following adjudication of his guilt, he brought challenges to his original plea, based on alleged violations to his right of counsel and right to a jury trial. Today, a majority of this court precludes him from bringing such claims. Because I believe that such claims may be brought, I respectfully dissent. As I have noted elsewhere, our case law establishes that on appeal from an order revoking probation (i.e., "regular" community supervision), a defendant is permitted to bring a challenge to the original conviction when such a challenge was for "fundamental error." Jordan v. State, 54 S.W.3d 783, 2001 Tex. Crim. App. LEXIS 54: "14 (Tex. Crim. App. 2001) (Johnson, J., dissenting). Because we have equated deferred adjudication with "regular" community supervision for purposes of appeal, logic dictates that this same rule of fundamental error apply in the context of deferred adjudication. See Manuel v. State, 994 S.W. 2 d 658,661 -2 (Tex. Crim. App. 1999). Jordan, S.W.3d at 2001 Tex Crim. App. LEXIS 54, "2. Today, however, the majority denies relief to appellant by overruling our "fundamental error"l'habeas corpus" case law. Ante, at, 2001 Tex. Crim. App. LEXIS 52, "10. Jordan, S.W.3d at 2001 Tex Crim. App. LEXIS 54, "14. I have noted my dissent to this action. Jordan, S.W.3d 2001 Tex Crim. App. LEXIS 54, "14 (Johnson, J., dissenting). The majority then goes on to declare that neither its decision today nor Manuel created a "new rule," so that a retroactively analysis is unnecessary. Ante, at 2001 Tex Crim. App. LEXIS 52, "14. I disagree. Despite the fact that we never explicitly held that the "fundamental error" rule applied in the context of deferred adjudication, the logic of Manuel so dictated since, as noted above, Manuel's holding was explicitly predicated on its equaling "regular" community supervision with deferred adjudication for purposes of appeal. Based on the foregoing, as well as my dissent in Jordan, I dissent. 1 The majority also states that "a judgment is void only in very rare situations-usually due to a lack of jurisdiction." Ante, at 2001 Tex Crim. App. LEXIS 52, "6. This statement is questionable in light of the Court's recent decision in Ex parte Seidei, 39 S.W.3d 221 (Tex. Crim. App. 2001). Johnson, J. Date Delivered: June 27, 2001 Footnotes

1 The record contains a written waiver of the right to have a court reporter record the defendant's plea. 2

No. v. State, No. 14-97-00377-CR, 1999 Tex. App. LEXIS 8949, "3 (Tex. App.-Houston [14th Dist.], November 18, 1989)(unpublished). 3 994 S.W. 2 d 658 (Tex. Crim. App. 1989). 4 Id. at 661-662. 5 Id. at 661 . $\int$ EXCIESIS 7 S. 2013 Madison Boudus &; Company, Inc., a member of the Local/vico Group. All rights reserved. Use of this product is subject to the restrictions and terms and conditions of the Mardow Boudus Mazarz Agreement.

6 Id. (emphasis added). 7 Whetstone v. State, 786 S.W. 2 d 381,363 (Tex. Crim. App. 1990). Traylor v. State, 561 S.W. 2 d 492, 494 (Tex. Crim. App. 1976). See Manuel, 994 S.W. 2 d at 661 (citing Whetstone and Traylor). 8 In Daniels v. State, 30 S.W.3d 407 (Tex. Crim. App. 2000), we stated that the reporter's record from the original deferred adjudication proceeding was not necessary to the appeal's resolution because "appetlant cannot now appeal any issues relating to the original deferred adjudication proceeding." Id at 409. However, in that case we did not confront a claim that a fundamental error exception recognized in regular probation cases - was applicable. 9 Ex Parte Patterson, 969 S.W. 2 d 16, 19 (Tex. Crim. App. 1998). 10 Corley v. State, 782 S.W. 2 d 859,860 n. 2 (Tex. Crim. App. 1989). Gonzales v. State, 723 S.W. 2 d 746, 747 n. 3 (Tex. Crim. App. 1987). 11 Browning v. Placke, 698 S.W. 2 d 362,363 (Tex. 1985). 12 See Duron v. State, 956 S.W. 2 d 547, 550-551 (Tex. Crim. App. 1997)(failure to allege an offense because the Court cannot ascertain which offense is alleged). Cook v. State, 902 S.W. 2 d 471, 476-480 (Tex. Crim. App. 1995)(failure to charge a "person"). First cases that specifically involve probation revocations referred to "fundamentally defective" indictments as being subject to attack on appeal from a revocation proceeding. Whetstone, 786 S.W. 2 d at 363 . Traylor v. State, 561 S.W. 2 d at 494. Except for certain circumstances outlined by Duron and Cook, "fundamental" indictment errors have been eliminated by constitutional and statutory amendment. Studer v. State, 799 S.W. 2 d 263, 271-272 (Tex. Crim. App. 1990). 13 Gallagher v. State, 690 S.W. 2 d 587, 588-589, 589 n.1, 594 (Tex. Crim. App. 1985)(district court has exclusive jurisdiction of misdemeanor offenses involving official misconduct). 14 See Wolfe v. State, 560 S.W. 2 d 656, 666 (Tex. Crim. App. 1978). For the judgment to be void, the record must show a complete lack of evidence to support the conviction, not merely insufficient evidence. Id. And a guilty plea constitutes some evidence for this purpose. Ex Parte Williams, 703 S.W. 2 d 674,682 (Tex. Crim. App. 1986). 15 Ex Parte Olvera, 489 S.W. 2 d 586, 589 (Tex. Crim. App. 1973). Ex Parte Felton, 815 S.W. 2 d 733, 737 (Tex. Crim. App. 1991); see also Custis v. United States, 511 U.S. 485, 496, 128 L. Ed. 2d 517, 114 S. Ct. 1732 (1994)(disco-nying Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963)). 16 Wolfe, 560 S.W. 2 d at 688. 17 $\int$ EXCIESIS 8 S. 2013 Madison Boudus &; Company, Inc., a member of the Local/vico Group. All rights reserved. Use of this product is subject to the restrictions and terms and conditions of the Mardow Boudus Mazarz Agreement.

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