Cooper v. State

• Citation: 45 S.W.3d 77
• Parties: (Tex.Crim.App. 2001) TERRY WAYNE COOPER, Appellant v. THE STATE OF TEXAS NO. 1100-99
• Decision Date: 04 April 2001
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 77

45 S.W.3d 77 (Tex.Crim.App. 2001)

TERRY WAYNE COOPER, Appellant v. THE STATE OF TEXAS

NO. 1100-99

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

April 4, 2001.

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS WICHITA COUNTY

Before the court en banc.

WOMACK, J. delivered the opinion of the Court, in which ,KELLER, P.J., and KEASLER, HERVEY, and HOLCOMB, JJ., joined. PRICE, J., filed a dissenting opinion, in which MEYERS, HOLLAND, and JOHNSON, JJ., joined.

This case presents the question of whether a plea-bargaining defendant may appeal the voluntariness of the plea. We hold that such an appeal was forbidden by an act of the legislature in 1977, and that our rules do not, and may not, allow such an appeal.

On July 16, 1998, the appellant waived in writing his right to trial by jury and pleaded nolo contendere to an indictment for forgery, a felony. There was a plea-bargain agreement by which the State agreed to recommend punishment of "one year confinement in the state jail facility with credit for 351 days, no fine, and restitution in the amount of ... approximately $37,000.00."¹ The court sentenced the appellant according to the terms of that agreement. The appellant was admonished orally, and agreed in writing, that he could not appeal without the permission of the trial court except as to matters raised by written motion filed prior to trial. He filed a written waiver of his right to appeal.

Twelve days later the appellant filed, pro se, a handwritten notice of appeal, which said only that he "files this his notice of appeal." On August 11, represented by counsel, he requested permission to appeal, which was denied the following day. He immediately filed an amended notice of appeal which said, "The substance of this appeal was raised by written motion and ruled on prior to trial."

The appellant's issues on appeal, however, had nothing to do with any pre-trial motions. They were whether his plea was knowing and voluntary, and whether the trial court erred in accepting the plea because the court failed to adequately admonish him about the waiver of his right to appeal.

The court of appeals dismissed the appeal for want of jurisdiction, citing its holdings in Long v. State, 980 S.W.2d 878 (Tex. App. - Fort Worth 1998, no pet.), and Villanueva v. State, 977 S.W.2d 693 (Tex. App. - Fort Worth 1998, pet. ref'd, untimely filed), that such a defendant may not challenge the voluntariness of his plea if the notice of appeal does not reflect that the trial court granted permission to appeal. Cooper v. State, No. 2-98-350-CR (Tex. App. - Fort Worth April 1, 1999) (not designated for publication).

Rule of Appellate Procedure 25.2(b) does not authorize an appeal in a case such as this. The rule reads:

(b)Form and sufficiency of notice.

(1)Notice must be given in writing and filed with the trial court clerk.

(2)Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order, and, if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01.

(3)But if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:

(A)specify that the appeal is for a jurisdictional defect;

(B)specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C)state that the trial court granted permission to appeal.

The appellant does not claim that Rule 25.2(b) authorizes his appeal. He relies on Flowers v. State, 935 S.W.2d 131 (Tex. Cr. App. 1996), a case that was appealed under the predecessor of Rule 25.2(b), Rule 40(b)(1) of the 1986 Rules of Appellate Procedure. The Court said in Flowers:

Appellant pled guilty in accord with a plea agreement. Therefore, the issues he could appeal are governed by his compliance with Rule 40(b)(1). Since he did not comply with Rule 40(b)(1) he could not raise the issues permitted by that Rule. However, he could raise jurisdictional issues and, as we have discussed, he could raise the issue of whether his plea was voluntary. Accordingly, appellant is entitled to have the issue of the voluntary nature of his plea addressed by the Court of Appeals because its appealability is not dependant on following Rule 40(b)(1) requirements.

Flowers, 935 S.W.2d at 134. The courts of appeals have divided on the question of whether the holding we made in Flowers should also be made under the present Rule 25.2(b), which was adopted after Flowers was delivered.² We granted review.

In limiting every appeal in a plea-bargain, felony case, Rule 25.2(b) is like the statute that was its origin. Former article 44.02 of the Code of Criminal Procedure contained no language that restricted its application.³ The proviso that was added to the statute in 1977 forbade appeal in every plea-bargained, felony case unless one of two conditions was met: the appellant had permission of the trial court, or the appeal was from a written, pre-trial motion.

The main thrust of the 1977 amendment was to eliminate appeals where the defendant had entered a plea of guilty or nolo contendere before the court as a result of a plea bargain and the punishment assessed did not exceed that agreed upon.⁴ The same legislature enacted another amendment to curtail the right to bail pending appeal.⁵ Taken together, these two acts were aimed at eliminating, or reducing, the ability of plea-bargaining defendants to delay the execution of their sentences by taking meritless appeals (known colloquially as "street" appeals which were decided by "windy" opinions).⁶

There is nothing in the language of the 1977 statute that suggests that the voluntariness of a plea was exempt from the limitation on appeal. Indeed, any such exception to the operation of the proviso would have completely frustrated the legislative purpose to eliminate meritless appeals. The only limitation on the ability of an appellant to allege that the plea was involuntary is the limit of the human imagination, which is exactly the evil that the legislation sought to eliminate.

Our conclusion that the 1977 proviso limits every appeal on every ground in a plea-bargain, felony case is bolstered by the action of the next legislature in enacting article 26.13(a)(3) of the Code of Criminal Procedure. That act required a court to admonish a defendant who was pleading guilty in a felony case of "the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial."⁷ The evident purpose of this act was to inform the defendant of the restrictions on appeal that were imposed by the 1977 proviso, so that the defendant could take them into account before making a knowing and voluntary decision to plead guilty.⁸ As the legislature saw it, the restrictions of the 1977 proviso applied to any matter in the case, without limitation.

Finding that the statute was subject to an exception for appeals on voluntariness would require the most compelling reasons. No such reasons were presented in Flowers. In that case the Court relied on three precedents to conclude that the right to appeal included the right to appeal the voluntariness of a guilty plea.⁹ In each of these cases we held that the plea of guilty was involuntary when the appellant had been incorrectly assured by a trial court that appeal was possible. There is no reason to doubt the correctness of those holdings. But that is not the issue before us. The issue is whether the voluntariness of the plea may be questioned by appeal. None of the three cases addressed that issue.

When we actually consider the issue of whether voluntariness of a guilty plea may be raised on appeal from a plea-bargained, felony conviction, we find that the answer must be that it may not. The first two reasons have been set out above: The legislature forbade it in 1977, and to do so would completely frustrate the statute. Our rule-making authority does not extend to enlarging the right of appeal in this fashion. Ironically, we made that point in Flowers when we said, "Neither Rule 40(b)(1) nor this Court's interpretation of that rule may modify or enlarge that right [to appeal]."¹⁰ The irony is that by its decision in Flowers that allows an appeal in a plea-bargained, felony case, this Court modified and enlarged the right to appeal.¹¹

Two other reasons support the legislative decision to forbid appeals of voluntariness in such cases. One is a cost-benefit analysis. The number of plea-bargain, felony cases in which a plea was entered involuntarily is very small, compared to the large number of meritless appeals that would be authorized.

It must be remembered that the rule we are construing applies only to plea-bargained, felony cases. In a former era a defendant was expected to plead guilty (often without a lawyer) and throw himself on the mercy of the court with no assurance of the punishment to follow. The defendant's decision to do so was first manifested in court when the plea was entered. At that time it was crucial that the court give the defendant information about the consequences of a plea of guilty so that the decision to do so could be voluntary and knowing. But the practice of plea bargaining, which was made necessary by the lack of judicial resources, shifted the crucial decision in most cases to a plea-bargain agreement that was struck between attorneys for the State and the defendant in a negotiation that took place off the record. For the felony courts of Texas this practice was recognized and regulated by statute in 1...