Ex Parte McCain, 1727-00.

• Decision Date: 09 January 2002
• Docket Number: No. 1727-00.,1727-00.
• Parties: Ex parte Steven Jerald McCAIN, Appellant.
• Court: Texas Court of Criminal Appeals

67 S.W.3d 204

Ex parte Steven Jerald McCAIN, Appellant.

No. 1727-00.

Court of Criminal Appeals of Texas.

January 9, 2002.

Andrew W. Lucas, Meridian, for appellant.

Dan V. Dent, DA, Hillsboro, Matthew Paul, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, KEASLER, and HERVEY, JJ., joined.

In this case, appellant argues that, because he was not appointed an attorney before he made his oral and written agreement to waive a jury trial, his voluntary guilty plea is void and therefore cognizable on a writ of habeas corpus.¹ We conclude that the violation of a procedural statute, even a "mandatory" statute, is not cognizable on a writ of habeas corpus. Although article 1.13(c) of the Texas Code of Criminal Procedure² states that the trial court "must" appoint an attorney to represent a felony defendant before he may waive a jury trial, this statutory provision does not embody a constitutional or fundamental right. Because habeas relief under article 11.07 is available only for jurisdictional defects and violations of certain fundamental or constitutional rights, appellant's claim is not cognizable on a writ of habeas corpus.

Therefore, we affirm the Tenth Court of Appeals and uphold the trial court, both of which denied appellant habeas relief. McCain v. State, 24 S.W.3d 565 (Tex.App.-Waco 2000).

I.

Appellant, a 17 year-old, was charged with the felony offense of indecency with a child by exposure. The victim was his niece, with whom he lived. Appellant appeared in court pro se on June 11, 1999, and waived his rights to be charged by grand jury indictment, to representation by counsel, to trial by jury, and to confront and cross-examine witnesses.³ Appellant entered a plea of "no contest" and the trial judge sentenced him to six years in prison, probated for six years per his plea agreement with the State. Appellant did not appeal.

On September 27, 1999, just two-and-a-half months later, the State filed a petition to revoke appellant's probation. Appellant was arrested, jailed and appointed an attorney to represent him. Before the trial court heard the motion to revoke probation, appellant filed an application for a writ of habeas corpus, seeking relief from his original plea. He contended that he was denied counsel in violation of article 1.13(c) and the Sixth Amendment to the United States Constitution. The trial court issued the writ and, after considering the pleadings and arguments of counsel,⁴ denied relief, finding that appellant's waiver of his right to counsel and of his right to a jury trial were valid. Appellant appealed from that order, and the court of appeals affirmed, finding appellant's complaint waived by the Helms rule.⁵

We deny appellant relief because his claim—the violation of a statute—is simply not cognizable on a writ of habeas corpus.

II.

A writ of habeas corpus is available only for relief from jurisdictional defects⁶ and violations of constitutional or fundamental rights.⁷ A felony defendant clearly does have a constitutional right to have an attorney represent him. But a defendant who has intelligently and voluntarily waived that right to counsel does not have a separate constitutional right to the appointment of counsel before deciding whether to waive his right to a jury trial in a felony case.

In what appellant notes is the most recent case from this Court to discuss the article 1.13(c) right to the appointment of an attorney before waiving the right to a jury trial, Retired Presiding Judge Onion stated: "We do not find, nor have we been cited any authority, which holds that the right to assistance of counsel prior to waiver of trial by jury in a criminal case is a fundamental right under due process of law." Ex Parte [Jerry Lee] Ross, 522 S.W.2d 214, 223 (Tex.Crim.App.1975).⁸ Judge Onion noted that "[t]here exists no federal constitutional provision which prohibits an accused from knowingly and intelligently waiving his right to trial by jury in a felony prosecution." Id. at 222. Presiding Judge Onion was correct. He also stated, however, that "before a defendant who has no attorney can agree to waive a jury trial in a non-capital felony, the court must appoint an attorney to represent him or the resulting conviction will be void." Ross, 522 S.W.2d at 223.⁹ Why void?

The earliest case holding that a conviction obtained in violation of art. 10a is "void," appears to be Ex parte Kelley, 161 Tex.Crim. 330, 277 S.W.2d 111, 112 (1955), in which this Court stated:

It has been the repeated holding of this court that the provision touching representation by counsel is mandatory and that noncompliance therewith renders the conviction void. Wilson v. State, Tex. Cr.App., 157 Tex. Cr. R. 642, 252 S.W.2d 197 [1952]; Hernandez v. State, 138 Tex.Cr.R. 4, 133 S.W.2d 584 [1939]; Ex parte Rawlins, 158 Tex.Cr.R. [346], 255 S.W.2d 877 [1953].

None of these three prior cases said that the conviction of a defendant who was not represented by counsel at the time he waived his right to a jury trial was "void." All three did say that article 10a was a "mandatory" provision and that it was error to not follow its provisions. But that is true of the failure to follow almost any mandatory statute.

In Kelley, this Court did not discuss the use of the word "void." That term simply popped into the opinion, like Athena springing full-grown from Zeus' brow. There is no logical or legal explanation for it. Nor does the term "void" fit the situation. Why would the voluntary waiver of a jury trial by a defendant who, though not represented, was otherwise fully informed of his rights and wished to waive them, automatically render his conviction void and without legal consequence? If the constitution does not require this procedure and the Legislature could eliminate the statute entirely, why would this Court conclude that a conviction is "illegal" and has no legal force whatsoever simply because of the failure to provide counsel to make that one decision? Under this "void conviction" reasoning, it matters not that the defendant forthrightly states that he wanted to waive his right to a jury trial then, and he wants to waive it now. Appellant's position is simply that, because the statute says he "must" have an attorney represent him before he waives a jury trial, his conviction is void. He neither alleges nor offers any evidence that he would have acted differently had the trial court appointed him an attorney to advise him whether or not to waive a jury trial.¹⁰

It appears that the first case to hold that a violation of art. 10a [now 1.13] is cognizable on a habeas writ was Ex parte Rawlins,¹¹ which relied upon Hernandez,¹² a direct appeal case. But Hernandez did not say that the resulting conviction was "void," merely that the statute "seemed" mandatory.¹³ This Court, in Ex parte Rawlins, did not discuss why the defendant could obtain relief on a writ of habeas corpus, as opposed to reversal on direct appeal, for a procedural error. If Rawlins stands for the proposition that any and all violations of a "mandatory" statute (i.e., one that contains the words "shall" or "must") are cognizable on habeas review, it has long since been overruled sub silentio because this Court has repeatedly held that procedural errors or irregularities or deviations from "mandatory" statutes are not cognizable on a writ of habeas corpus.¹⁴

In recent years, this Court has attempted to refine the definition of a "void" v. "voidable" conviction because those terms have caused so much confusion in Texas criminal law. "Void" convictions should be defined as those in which the trial court lacked jurisdiction over the person or subject matter or in which the trial judge lacked qualification to act in any manner. See, e.g., Ex parte Seidel, 39 S.W.3d 221, 226-27 (Tex.Crim.App.2001) (Womack, J., dissenting, joined by Keller, P.J. & Meyers, J.).¹⁵ Procedural errors or statutory violations may be reversible error on direct appeal, but they are not "fundamental" or "constitutional" errors which require relief on a writ of habeas corpus.¹⁶ We should clearly define the scope of issues and claims that are cognizable on a writ of habeas corpus as those which raise either jurisdictional defects or constitutional claims.

Even if the trial judge were to violate a "mandatory" statute by accepting the defendant's waiver of a jury trial without first appointing an attorney to represent him for purposes of that one decision, that violation would not suffice to invoke habeas relief. After all, most provisions in the Code of Criminal Procedure are "mandatory," in that they state that a trial court "shall" or "must" do something in a particular manner. To say that a statute is "mandatory" is simply to say that the law prescribes the manner in which a particular action should or shall be taken.

For example, although other portions of article 1.13 are also written in mandatory terms, a violation of those provisions would not be cognizable on a writ of habeas corpus because it would not be a jurisdictional defect or constitutional or fundamental violation. It would be a procedural violation. In Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App.1993), this Court, in an 8-1 decision, held that a violation of the mandatory requirement in article 1.13 that a defendant sign a jury waiver¹⁷ was not cognizable on a writ of habeas corpus. In Sadberry, this Court relied upon numerous prior cases which had held that habeas relief is available only for instances in which "the trial court's judgment is void, and cannot be invoked for mere irregularities in the proceedings below." Id. at 542. Unfortunately, the Court used the dreaded word "void" again. However, the cases this Court relied upon correctly stated the circumstances under which habeas relief is available, namely, to review jurisdictional defects or denials of fundamental or constitutional rights. As the Court...