Hernandez v. State, 03-98-00279-CR

• Decision Date: 04 March 1999
• Docket Number: No. 03-98-00279-CR,03-98-00279-CR
• Citation: 986 S.W.2d 817
• Parties: Tanja HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 817

986 S.W.2d 817

Tanja HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 03-98-00279-CR.

Court of Appeals of Texas,

Austin.

March 4, 1999.

John C. Kuhn, Kuhn, Doyle & Kuhn, P.C., Austin, for Appellant.

Ken Anderson, District Attorney, John M. Bradley, Assistant District Attorney, Georgetown, for State.

Before Chief Justice ABOUSSIE, Justices KIDD and PATTERSON.

MACK KIDD, Justice.

The district court found appellant Tanja Hernandez guilty of possessing less than one gram of cocaine after accepting her guilty plea and hearing her judicial confession. Tex. Health & Safety Code Ann. § 481.115(a), (b) (West Supp.1999). Appellant later moved to withdraw her plea, but the motion was overruled after a hearing. Pursuant to a plea bargain agreement, the court assessed punishment at incarceration in a state jail for two years and a $2500 fine, suspended imposition of sentence, and placed appellant on community supervision.

The State moves to dismiss this appeal for want of jurisdiction, citing appellant's failure to comply with Texas Rule of Appellate Procedure 25.2(b)(3). ¹ Appellant's original and amended notices of appeal state that she seeks to appeal the voluntariness of her guilty plea. Neither notice states that the substance of this contention was raised by written motion and ruled on before trial, or that the district court granted permission to appeal. Rule 25.2(b)(3)(B), (C). The State's motion to dismiss requires this Court to determine the effect of the September 1, 1997, appellate rule amendments regarding notices of appeal in criminal cases.

By statute, criminal defendants in Texas have a general right to appeal following conviction. Tex.Code Crim. Proc. Ann. art. 44.02 (West 1979). The scope of this appellate right has been limited, however, for defendants who plead guilty. The court of criminal appeals has held that a defendant who knowingly and voluntarily pleads guilty waives all nonjurisdictional defects or errors that occurred before entry of the plea, including violations of federal due process. This has come to be called the Helms rule, after one of the first opinions to apply the rule. Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972). The legislature modified the Helms rule in 1977 by adding a proviso to article 44.02. Under the proviso, if a defendant pleaded guilty or no contest before the court pursuant to a plea bargain agreement, and if the punishment assessed did not exceed that agreed to in the plea bargain, the defendant could appeal any matter raised by written motion filed prior to trial or for which he had the trial court's permission to appeal. Act of May 23, 1977, 65th Leg., R.S., ch. 351, § 1, 1977 Tex. Gen. Laws 940 (Tex.Code Crim. Proc. Ann. art. 44.02, proviso repealed by order of Texas Court of Criminal Appeals effective Sept. 1, 1986).

The article 44.02 proviso was replaced by the "but if" clause of former appellate rule 40(b)(1), the immediate predecessor to rule 25.2(b)(3). Tex.R.App. P. 40(b)(1), 49 Tex. B.J. 556, 566 (1986) (since repealed). ² Rule 40(b)(1) was adopted on the assumption that the body of case law construing the article 44.02 proviso would prevail and still control. Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App.1994); Lemmons v. State, 818 S.W.2d 58, 62 (Tex.Crim.App.1991); and see Tex. Gov't Code Ann. § 22.108(a) (West 1988) (criminal appellate rules may not abridge, enlarge, or modify substantive rights). Pursuant to this understanding, the court of criminal appeals in three opinions construed rule 40(b)(1) to apply in a manner consistent with practice under prior law. First, the court held that a defendant subject to rule 40(b)(1) could not prosecute an appeal for a nonjurisdictional defect occurring before or after the guilty plea without the trial court's permission, even though rule 40(b)(1) by its terms applied only to errors or defects occurring prior to the plea. Davis, 870 S.W.2d at 46. Second, the court held that a defendant subject to rule 40(b)(1) could appeal a jurisdictional issue without the trial court's permission and without raising the issue in a pretrial motion. Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994). Third, the court held that a defendant subject to the "but if" clause could appeal the voluntariness of the plea even though rule 40(b)(1) did not expressly exempt that issue from its requirements. Flowers v. State, 935 S.W.2d 131, 133-34 (Tex.Crim.App.1996).

With that background, we turn to the scope of appellant's appeal under rule 25.2(b)(3), which replaced former rule 40(b)(1) effective September 1, 1997. In two respects, rule 25.2(b)(3) is substantively identical to former rule 40(b)(1). Because appellant's notice of appeal does not state that the trial court granted her permission to appeal, she cannot raise any issue for which such permission is necessary. Rule 25.2(b)(3)(C). And because her notice of appeal does not contain the necessary recital, she also cannot appeal the substance of any pretrial ruling. Rule 25.2(b)(3)(B). Rule 25.2(b)(3) differs from former rule 40(b)(1) with respect to jurisdictional issues. While an appellant may still raise a jurisdictional defect on appeal from a bargained plea of guilty or no contest, the notice of appeal must now specify that the appeal is for that purpose. Rule 25.2(b)(3)(A). To this extent, the new rule clearly overrules the holding in Lyon. Because appellant's notice of appeal does not contain the necessary recital, it does not invoke this Court's jurisdiction to consider a jurisdictional issue.

Finally, there is the question whether appellant may challenge the voluntariness of her guilty plea. On its face, rule 25.2(b)(3) does not authorize an appeal on this ground without the trial court's permission, or unless the issue is somehow raised by pretrial motion and ruled on before trial. ³ We do not infer from this that appellant's appeal is foreclosed, however, because rule 25.2(b)(3) is identical to the "but if" clause of former rule 40(b)(1) in this respect. The court of criminal appeals held in Flowersthat a knowing and voluntary plea was an implied prerequisite for application of rule 40(b)(1), and that compliance with the rule was not necessary in order to raise the voluntariness issue on appeal. Flowers, 935 S.W.2d at 133. Because we find nothing in the text of the new rule to indicate that it was intended to overrule Flowers in whole or in part, we conclude that Flowers remains fully applicable to appeals under rule 25.2(b)(3).

Another court of appeals reached a different conclusion. See Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex.App.--Fort Worth 1998, no pet.). The Fort Worth court held that a defendant who pleads guilty or no contest pursuant to a plea bargain may still challenge the voluntariness of the plea on appeal, but may do so under rule 25.2(b)(3) only with the permission of the trial court. In its opinion, the court gives three reasons for its conclusion. First, the court notes that the rule does not expressly exempt the voluntariness issue from its procedural requirements. Id. at 695. As we have already explained, the same was true of former rule 40(b)(1). Nevertheless, Flowers held that the voluntariness issue was not foreclosed by noncompliance with the rule.

Next, the Fort Worth court cites a portion of the comment to rule 25.2:

In felony cases in which the defendant waived trial by jury, pleaded guilty or nolo contendere, and received a punishment that did not exceed what the defendant agreed to in a plea bargain, the rule is amended to make clear that regardless of when the alleged error occurred, an appeal must be based on a jurisdictional defect or a written motion ruled on before trial, or be with the permission of the trial court.

Notes and Comments, Tex.R.App. P. 25.2; see Villanueva, 977 S.W.2d at 695. This comment draws the reader's attention to the absence of language purporting to limit the rule to errors or defects occurring prior to the plea. Such language had been present in former rule 40(b)(1), but rendered nugatory by the opinion in Davis. To the extent the comment implies that a defendant must have the trial court's permission to challenge the voluntariness of her plea on appeal, it is in conflict with the holding in Flowers. Further, the notes and comments are not part of the rules themselves. See Final Approval of Revisions to the Texas Rules of Appellate Procedure, order 7 (Tex.Crim.App. Aug. 15, 1997). To the extent the comment conflicts with the holding in Flowers, we believe the prudent course is to follow Flowers unless and until the court of criminal appeals clearly states that we are to do otherwise.

Finally, the Villanueva opinion relies on a statement by two former court of criminal appeals judges. Statement Accompanying Approval of Revisions to the Texas Rules of Appellate Procedure, 60 Tex. B.J. 408 (Tex.Crim.App. Mar. 20, 1997); see Villanueva, 977 S.W.2d at 695. In this statement, Judges Baird and Overstreet wrote that rule 25.2 "overrules Flowers " and that "[u]nder Rule 25.2, a defendant will be precluded from raising on appeal a complaint challenging the voluntariness of the negotiated plea." While the Villanueva court says that it finds this observation persuasive, we note that the court does not apply it literally. Villanueva does not go so far as to hold that the voluntariness of a bargained plea of guilty or no contest is not appealable, but holds only that the defendant must first obtain the trial court's permission to raise the issue on appeal. With all due respect, we are not persuaded that the unanimous opinion in Flowers was overruled sub silentio by rule 25.2(b)(3).

For the reasons stated, we hold that the voluntariness issue is not subject to the procedural requirements of rule 25.2(b)(3). Appellant's notice of appeal is sufficient to invoke this Court's jurisdiction to consider the voluntariness of her guilty plea. The State's motion to dismiss for...