Lemmons v. State

• Decision Date: 02 October 1991
• Docket Number: No. 1025-90,1025-90
• Citation: 818 S.W.2d 58
• Parties: Robert D. LEMMONS, Appellant, v. The STATE of Texas, Appellee. En Banc
• Court: Texas Court of Criminal Appeals

Page 58

818 S.W.2d 58

Robert D. LEMMONS, Appellant, v. The STATE of Texas, Appellee.

No. 1025-90.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 2, 1991.

Joe Mike Egan, Jr., Kerrville, for appellant.

David Marshall Motley, County Atty., Kerrville, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Pursuant to a plea bargain Appellant pled guilty to driving while intoxicated and the trial court sentenced him to 180 days in jail and a $300.00 fine. Finding the plea was "conditional," the court of appeals reversed and remanded for a new trial. Lemmons v. State, 796 S.W.2d 572 (Tex.App.--San Antonio 1990). We granted review to determine whether Tex.R.App.Pro. Rule 40(b)(1) precludes appeal from denial of pretrial motions prior to entry of a negotiated guilty plea in a misdemeanor case.

Appellant filed a motion to suppress evidence and argued the police lacked a legal basis to stop him. The trial court denied the motion. Appellant then pled guilty. In his only point of error on appeal appellant claimed the trial court erroneously denied his motion to suppress. Sua sponte, however, the court of appeals cited Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972), for the rule that a voluntary and knowing guilty plea waives nonjurisdictional defects. But the court also noted that the Helms rule does not apply under Tex.R.App.Pro. Rule 40(b)(1) if the plea was entered pursuant to Article 1.15, V.A.C.C.P., there was a plea bargain, and the error was raised in a written pretrial motion. The court concluded that since Article 1.15 refers only to a felony conviction, then a guilty or nolo contendere plea in a misdemeanor case waives all nonjurisdictional errors under the Helms rule.

The State conceded on appeal and the record shows that the trial court and the parties understood that the guilty plea was conditioned on his reservation of his right to appeal the adverse suppression ruling. The court of appeals concluded that appellant involuntarily pled guilty, citing Broddus v. State, 693 S.W.2d 459 (Tex.Cr.App.1985), and Christal v. State, 692 S.W.2d 656 (Tex.Cr.App.1985), and the case was remanded to the trial court for a new trial.

In his petition, appellant contends that to hold Rule 40(b)(1) applies only to felonies "wash[es] away all of the careful interpretation" of Article 44.02, V.A.C.C.P., partially repealed by Rule 40(b)(1). ¹ Cases interpreting prior Article 44.02 permitted appeals in misdemeanor cases in which a defendant pleaded guilty, without waiving non-jurisdictional errors. See Kraft v. State, 762 S.W.2d 612 (Tex.Cr.App.1988), and Isam v. State, 582 S.W.2d 441 (Tex.Cr.App.1979). Appellant notes that in Morgan v. State, 688 S.W.2d 504 (Tex.Cr.App.1985), this Court recognized that the Article 44.02 right to appeal encouraged guilty pleas when the only contested matter between the parties is some matter such as the lawfulness of a search or seizure, competency, or sufficiency of the indictment. The interpretation by the court of appeals, according to appellant, conflicts with reason and the historical legislative purpose of Article 44.02.

For its part, the State failed to reply to his petition for review and did not favor us with a brief. Without benefit of its views, we will examine those contentions in more depth.

"A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed." Article 44.02, V.A.C.C.P., as enacted in 1965; former article 813, C.C.P.1925. "An accused may appeal his case although he entered a plea of guilty." Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081, at 1084 (1941); see, e.g., Alonzo v. State, 462 S.W.2d 602 (Tex.Cr.App.1971); Alexander v. State, 163 Tex.Cr.R 53, 288 S.W.2d 779 (1956). "The right of appeal, where authorized, is a valuable right and should be denied only where the express mandate of the law so provides." Young v. State, 146 Tex.Cr.R. 220, 172 S.W.2d 500, at 501 (1943). "Every person who takes an appeal from a conviction in the county or district court over which [an appellate court] has been given jurisdiction is legally entitled to have his case reviewed." Chumbley v. State, 137 Tex.Cr.R. 491, 132 S.W.2d 417 (1939).

Appellate jurisdiction is invoked and appeal is perfected by giving notice of appeal pursuant to Article 44.08, V.A.C.C.P. (now Tex.R.App.Pro. Rule 40(b)(1)). Carter v. State, 656 S.W.2d 468, at 469 (Tex.Cr.App.1983).

The Court initially imported a seedling of the so-called "Helms rule" into this state in Hoskins v. State, 425 S.W.2d 825 (Tex.Cr.App.1968) (opinion on rehearing), viz:

"With reference to appellant's claim of deprivation of federal constitutional due process, attention is directed to Bee v. Beto, 384 F.2d 925 [CA5 1967], wherein the Fifth Circuit Court of Appeals held that a guilty plea entered by a Texas state defendant was conclusive as to the defendant's guilt, admitted all facts charged in the indictment and waived all nonjurisdiction defects, citing White v. Beto, 367 F.2d 557 [CA5 1966]; Law v. Beto, 370 F.2d 369 [CA5 1966] and Haynes v. United States, 372 F.2d 651 [CA5 1967]."

Id., at 829-830. ² For further developments, see Dees v. State, 676 S.W.2d 403 (Tex.Cr.App.1984) (Clinton, J., dissenting, at 406-497). The federal rule is, of course, at odds with decisions of this Court prior to Hoskins, see ante, and with the prohibition in Article 1.15, V.A.C.C.P., that "in no event shall a person be convicted [of a felony offense] upon his plea without sufficient evidence to support the same." Ibid. ³. Hoskins and its progeny down through Helms dealt with felony offenses.

Then in Utsman v. State, 485 S.W.2d 573 (Tex.Cr.App.1972), the "Helms rule" was applied to a plea of guilty in a misdemeanor case. Moreover, the Court converted the rule to reject the "conditional plea" theory previously utilized in, e.g., Killebrew v. State, 464 S.W.2d 838 (Tex.Cr.App.1971) and Chavarria v. State, 425 S.W.2d 822 (Tex.Cr.App.1968). The Utsman court said, "To enter a plea of guilty one must waive such rights [to appeal adverse rulings]." And, instead of reversing the judgment and remanding the cause for a fresh plea, as in Killebrew and Chavarria, the Court held defendant waived his right to complain when he entered his plea of guilty, and affirmed the judgment of conviction. Utsman v. State, supra, at 574-575. See also Salinas v. State, 478 S.W.2d 538 (Tex.Cr.App.1972), a felony case to the same effect. Despite Utsman, however, the "conditional plea" notion remained viable, e.g., Broddus v. State, 693 S.W.2d 459 (Tex.Cr.App.1985); Harrelson v. State, 692 S.W.2d 659 (Tex.Cr.App.1985); Christal v State, 692 S.W.2d 656 (Tex.Cr.App.1985)--albeit over outcry by our late Brother Teague in Broddus, at 461-462.

Contemporaneously, the Court and the Legislature were coming to grips with the reality of plea bargaining process in the wake of 1974 proceedings giving rise to Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975), cert. denied 429 U.S. 822, 97 S.Ct. 72, 50 L.Ed.2d 83 (1976), which no doubt inspired recurring revisions of preliminary admonishments for pleas of guilty and nolo contendere beginning in 1975. See Historical Note to Article 26.13, V.A.C.C.P. Presumptively aware of the Helms rule, by Acts 1977, 65th Leg., Ch. 351, p. 940, § 1, the Legislature also added a proviso to Article 44.02, viz:

"... provided, however, before the defendant who has been convicted upon either his plea of guilty or nolo contendere before the court and the court ... assesses punishment [which] does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the court, except on those matters which have been raised by written motion filed prior to trial. * * * * "

Then in Acts 1979, 66th Leg., Ch. 524, p. 1108, § 1, it inserted subdivision (a)(3) in Article 26.13, apparently to dovetail with the 1977 proviso to Article 44.02.

Reacting to those developments, in the felony case of Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978), and the misdemeanor conviction in Isam v. State, 582 S.W.2d 441 (Tex.Cr.App.1979), the Court opined:

".... The legislature appears to have abrogated this [Helms ] rule regarding the effect of a guilty plea in cases of plea bargains, as is its prerogative.... To this extent [pretrial motions] the amendment of Article 44.02 supercedes the prior case law as stated in Helms, supra."

Id., Ferguson, at 910; Isam, at 443, quoting Ferguson. Accordingly, the Court considered the points of error on appeal regarding motions to suppress in both Ferguson and Isam. ⁴ With that understanding of the impact the proviso made on the Helms rule, in Martin v. State, 652 S.W.2d 777, at 779 (Tex.Cr.App.1983), the Court unblocked the way to plenary review of speedy trial claims; it ultimately concluded that all pretrial claims could be considered on appeal, viz:

"Having thus encouraged pleas of guilty and nolo contendere in exchange for the right to appeal contested pretrial issues, the Legislature surely contemplated a meaningful appeal--one that addresses and decides each issue on the merits. The Helms rule of waiver barring review was superseded. Ferguson, supra, at 910. Without let or hindrance the 1977 amendment to Article 44.02 opened the previously closed way to appellate consideration of issues raised and contested before trial."

Morgan v. State, 688 S.W.2d 504, at 507 (Tex.Cr.App.1985).

Thus the Court accepted legislative abrogation of the Helms rule in plea bargain cases, and for all intents and purposes finally interred it. See, e.g., Kraft v. State, 762 S.W.2d 612 (Tex.Cr.App.1988). Being committed to that proposition, the Court was not disposed to resurrect the Helms rule once the Legislature granted it power to adopt and promulgate rules of appellate procedure by Acts 1985, 69th Leg., Ch. 685, p....