King v. State

• Decision Date: 10 April 1985
• Docket Number: No. 860-83,860-83
• Citation: 687 S.W.2d 762
• Parties: Avan KING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 762

687 S.W.2d 762

Avan KING, Appellant, v. The STATE of Texas, Appellee.

No. 860-83.

Court of Criminal Appeals of Texas En Banc.

April 10, 1985.

George A. Preston, M.P. Duncan, III, Denton, for appellant.

Jerry Cobb, Dist. Atty. & Fred Marsh, Asst. Dist. Atty., Denton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of delivery of a controlled substance, to-wit: cocaine. See Article 4476-15, § 1.02(8), V.A.C.S. The punishment was assessed by the jury, upon appellant's plea of guilty, at six (6) years' imprisonment.

The indictment alleged in pertinent part that appellant King on or about January 17, 1980, "did then and there knowingly and intentionally deliver to James D. Humphreys a controlled substance, to wit: cocaine...."

Appellant filed a motion to quash the indictment alleging it failed to set forth the offense in plain and intelligible words in violation of Article 21.02, V.A.C.C.P., and without sufficient certainty to be able to plead any judgment in bar of further prosecution for the same offense in violation of Article 21.04, V.A.C.C.P. Said motion alleged the indictment failed to define "delivery" as actual or constructive transfer or as an offer to sell and did not give sufficient notice. The motion was denied on May 12, 1980. The next day the appellant entered a plea of guilty to the indictment before a jury. ¹ There was no plea bargain. Humphreys, an undercover agent of the Texas Department of Public Safety, testified that on January 17, 1980, he went to appellant's home in Lewisville. Appellant invited him in and sold him cocaine for $100.00. The cocaine was in the kitchen on a mirror and appellant hand delivered the cocaine to Humphreys. A chain of custody was established, and the chemist testified the substance was cocaine. Appellant testified and made a judicial confession. The record reflects on direct examination:

"Q All right, now, Mr. King, on the 17th day of January, 1980, did you deliver to Mr. Humphreys the cocaine that I think Mr. Valdez (chemist) brought in?

"A Yes, sir.

"* * *

"Q Do you have any quarrel with the testimony that the State presented through Mr. Humphreys as to the fact that you did sell him this cocaine?

"A No, sir."

Thereafter the jury returned the verdict assessing punishment. Judgment and sentence were entered. No notice of appeal was given.

An appellate record reached the Court of Criminal Appeals on December 22, 1980. On February 3, 1982, the attempted appeal was dismissed for want of jurisdiction. The Court did not find any notice of appeal, oral or written, in the record as required by Article 44.08, V.A.C.C.P. See King v. State, 629 S.W.2d 956, a per curiam panel opinion. On May 4, 1982, the mandate of the Court of Criminal Appeals was issued. The felony conviction became final.

Subsequently the appellant requested permission of the Ft. Worth Court of Appeals to give belated notice of appeal, see Article 44.08(e), V.A.C.C.P., as amended in 1981, the Courts of Appeals having acquired criminal jurisdiction effective September 1, 1981. Article V, § 6, Tex. Const., as amended in 1981.

The Ft. Worth Court of Appeals granted permission to give belated notice of appeal on June 2, 1982. See King v. State, 634 S.W.2d 794 (Tex.App.--Ft. Worth 1982). Thereafter notice of appeal was given on June 14, 1982.

On appeal appellant raised the same contentions advanced before the Court of Criminal Appeals. He urged, inter alia, that the trial court erred in overruling his motion to quash the indictment in that the indictment failed to give him notice of the charge against him as contemplated by Article I, § 10, Tex. Const., and the Sixth Amendment, United States Constitution, and did not allege the offense with such specificity as to serve as an adequate bar to future prosecution for the same offense in the event of conviction. ²

The Court of Appeals reversed appellant's conviction and dismissed the indictment, holding the trial court erred in overruling the motion to quash the indictment. King v. State, 656 S.W.2d 617 (Tex.App.--Ft. Worth 1983).

In so holding, the Court of Appeals had to wrestle with the question of whether appellant retained his right to appeal the ruling on the motion to quash in view of his guilty plea absent a valid plea bargain. The court was confronted with the so-called Helms rule and the 1979 amendment to Article 44.02, V.A.C.C.P. In Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972), it was held that where a plea of guilty is voluntarily and understandably made, all non-jurisdictional defects including claimed deprivation of federal due process are waived. See also Fierro v. State, 437 S.W.2d 833, 834 (Tex.Cr.App.1969); Soto v. State, 456 S.W.2d 389 (Tex.Cr.App.1970); Salinas v. State, 478 S.W.2d 538 (Tex.Cr.App.1972); Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977); Prochaska v. State, 587 S.W.2d 726, 728 (Tex.Cr.App.1979). ³

In 1979 the Legislature amended Article 44.02, supra. The broad right of a defendant in a criminal case was retained, but narrowed in those cases where the defendant entered a guilty plea before the trial court and his punishment was assessed within the terms of a plea bargain agreement. In such cases the defendant has no right of appeal without the permission of the trial court except as to rulings on pre-trial motions raised prior to trial. ⁴

The Court of Appeals believed Helms to be overbroad and that it had been modified by recent decisions and not applicable to allegedly defective indictments, and that while Article 44.02 placed some limitations on the right to appeal with respect to plea bargaining situations, the limitations were not meant to be applicable where no plea bargain occurred. The court found the appeal was properly before it. The Court of Appeals then found that while the indictment was sufficient to confer jurisdiction upon the trial court, it was deficient as to notice in view of the motion to quash. The court found the trial court erred in overruling the motion to quash citing Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.1980).

We granted the State's petition for discretionary review to determine the correctness of the decision of the Court of Appeals.

We commence by turning to the 1977 amendment to Article 44.02, the legislative history of which has been previously discussed. Ex parte Morgan, 688 S.W.2d 504 (Tex.Cr.App.1985) (Dissenting Opinion).

Article 44.02 as originally enacted in 1965 was left intact. Thus most of the former procedures were left undisturbed. A defendant convicted upon his plea of not guilty before the court or jury still retains the right to appeal at his option. By his not guilty plea a defendant still preserves the right of appellate review of the rulings on his pre-trial motions if convicted.

A defendant who enters a plea of guilty or nolo contendere without a plea bargain either before the court or a jury still retains the right of appeal at his option. The former appellate procedure regarding such pleas (where there is no plea bargain) is not changed by the 1977 amendment to Article 44.02. Decker v. State, 570 S.W.2d 948 (Tex.Cr.App.1978); Cleveland v. State, 588 S.W.2d 942 (Tex.Cr.App.1979); Morgan v. State, 608 S.W.2d 639, 641 (Tex.Cr.App.1980). See also Mitchell v. State, 648 S.W.2d 776 (Tex.App.--San Antonio 1983).

In Prochaska v. State, 587 S.W.2d 726, 729 (Tex.Cr.App.1979), this Court, speaking through Judge Clinton, wrote:

"Yet, whatever the reasoning, the Legislature conditioned a departure from the Helms rule in two restrictive respects: one, that there be a negotiated recommendation as to punishment and, two, that the punishment actually assessed by the trial court not exceed the recommendation. In these circumstances permission of the trial court to appeal is not required 'on those matters which have been raised by written motion prior to trial.' Given this limited abrogation of the Helms rule by the Legislature, we must reluctantly conclude that the rule remains viable in a case where a plea bargain has not been reached." (Emphasis supplied.)

In Cleveland v. State, supra, this Court stated at p. 944:

"Appellant therefore contends that the court's ruling on the motion to suppress in the instant case should be considered on appeal as Article 44.02, as amended 1977, indicates the legislative intent to 'reverse' the line of cases represented by Helms v. State, supra. We do not agree. By its very language, Article 44.02, supra, does not limit appeals in cases, such as the instant one, where the defendant pleads guilty before the court without a plea bargain and recommendation as to punishment. We conclude that the Helms line of cases still applies to appeals such as the instant case. The trial court's ruling on the motion to suppress is not before this court for review." (Emphasis supplied.)

In Kass v. State, 642 S.W.2d 463 (Tex.Cr.App.1981), this Court stated:

"Since the record fails to reflect that the plea in the instant case was a negotiated plea bargain, appellant's plea of guilty waived her right to complain of the court's actions in overruling the motion to quash...."

Unless a defendant can bring himself within the amendment to Article 44.02, the 1977 provisions thereof do not apply. See Morgan v. State, supra; Prochaska v. State, supra. Thus, should the record reflect either no plea bargaining agreement or a plea to a jury, it follows that the defendant is not within the amendments to Article 44.02. See, e.g., Ex parte Sterling 595 S.W.2d 536 (Tex.Cr.App.1980); Decker v. State, supra; Prochaska v. State, supra; Cleveland v. State, supra; Wheeler v. State, 628 S.W.2d 800 (Tex.Cr.App.1982).

The Court of Appeals has misconstrued Article 44.02 and the legislative intent. There is a distinction between the cases where there is a plea bargain and cases where there is no plea bargain. Further,...