Lyon v. State

• Decision Date: 12 January 1994
• Docket Number: No. 225-89,225-89
• Parties: Edward B. LYON, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 732

872 S.W.2d 732

Edward B. LYON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 225-89.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 12, 1994.

Roy E. Greenwood, Austin, for appellant.

Edward B. Lyon, Jr., pro se.

John F. Miller, Jr., Dist. Atty., and James Elliott, Asst. Dist. Atty., Texarkana, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted of murder based on a negotiated guilty plea. The trial court sentenced appellant to life imprisonment within the terms of his agreed plea-bargain with the State. See Article 1.15, V.A.C.C.P.

Acting pro se, appellant filed a notice of appeal pursuant to Tex.R.App.Pro. 40(b)(1). In that notice, appellant requested the trial court to grant him permission to appeal (1) pretrial motions, ¹ (2) violations of appellant's due process rights, and (3) ineffective assistance of counsel. The trial court denied this request by written order. Appellant also filed an affidavit of indigence and moved the trial court to furnish him with the transcript and statement of facts so he could pursue a pro se appeal. The trial court found appellant was indigent and granted that motion. ²

In his appeal to the Texarkana Court of Appeals, appellant presented the following points of error: (1) the trial judge was disqualified from sitting in appellant's case under Article V, Section 11 of the Texas Constitution, Article 30.01, V.A.C.C.P., and the Texas Code of Judicial Conduct, because the trial judge's daughter was married to the victim's brother, and the trial judge's son was the prosecutor in appellant's case, (2) appellant's guilty plea was coerced and involuntary, (3) the trial court erred in failing to admonish appellant concerning his appellate rights as required by Article 26.13(a)(3), V.A.C.C.P., (4) the trial court erred in accepting appellant's guilty plea because there was insufficient evidence to support his plea and conviction, (5) appellant received ineffective assistance of counsel in connection with his guilty plea, and (6) appellant's counsel had a conflict of interest in representing appellant during the plea proceedings because he also represented appellant's codefendant.

The Court of Appeals, in effect, held it had jurisdiction to address only appellant's jurisdictional issues because appellant's notice of appeal did not comply with the "but" clause of Rule 40(b)(1). ³ Lyon v. State, 764 S.W.2d 1 (Tex.App.--Texarkana 1988). The Court of Appeals addressed the issues relating to the trial judge's relationship to the victim and the prosecutor, and held it had no jurisdiction to address the other issues. Id. at 1 n. 2. The Court of Appeals affirmed the conviction and held the trial judge's relationship to the victim and the prosecutor did not disqualify him from sitting in the case. Id. at 1 n. 2, and 2.

We granted the following grounds for review in appellant's petition for discretionary review: whether the Court of Appeals erred (1) in holding it had jurisdiction to review only jurisdictional issues, (2) in failing to address appellant's ineffective assistance of counsel claim, (3) in failing to address appellant's sufficiency claim, and (4) in holding the trial judge's relationship to the victim did not disqualify him from presiding over appellant's prosecution under Article V, Section 11, supra, Article 30.01, supra, or the Texas Code of Judicial Conduct. We affirm the judgment of the Court of Appeals.

Our caselaw on how a defendant, in an appeal from a plea-bargained conviction, confers jurisdiction on a Court of Appeals to address certain issues is not exactly a model of clarity and concise legal analysis. See, e.g., Lemmons v. State, 818 S.W.2d 58, 63 n. 6 (Tex.Cr.App.1991); Morris v. State, 749 S.W.2d 772, 778, 778-80 (Tex.Cr.App.1986) (Clinton, J., dissenting) ("Appellant has been blindsided!"); Morgan v. State, 688 S.W.2d 504, 507 (Tex.Cr.App.1985) ("some [defendants] have 'successfully navigated the procedurally hazardous passageway of [former Rule 40(b)(1) ],'.... but most have failed to steer clear of rocks and shoals"); Morgan, 688 S.W.2d at 508-24 (Onion, P.J., dissenting); King v. State, 687 S.W.2d 762, 764-66 (Tex.Cr.App.1985); King, 687 S.W.2d at 767 (Teague, J., dissenting) ("Color me not only amazed, but do it in chartreuse"). Although these cases are not exactly on point with this case, they illustrate the conflicting views of this Court in this area of the law. There also are conflicting views among the Courts of Appeals on the effect of the "but" clause in Rule 40(b)(1). See Lemmons, 818 S.W.2d at 62.

The right to appeal a criminal conviction is a substantive right solely within the province of the Legislature. Lemmons, 818 S.W.2d at 62. Before 1977, a defendant in a criminal action had a general right to appeal anything. Article 44.02, V.A.C.C.P., as enacted in 1925; ⁴ former Article 813, C.C.P.1925; Lemmons, 818 S.W.2d at 59; Morris, 749 S.W.2d at 778-80. However, as a matter of decisional law, we held a guilty plea waived all nonjurisdictional defects in the prior proceedings; this rule is commonly known as the Helms rule. ⁵ See also Morris, 749 S.W.2d at 779. But, the Helms rule discouraged guilty pleas, and caused a defendant, who wanted to preserve his appellate issues, to force the State to a full trial on the merits. See Morris, 749 S.W.2d at 779; but see Morgan, 688 S.W.2d at 513-14. Apparently, this cost the State a lot of money. See Morris, 749 S.W.2d at 779.

In response to this situation, the Legislature added the following proviso to Article 44.02 in 1977: ⁶

"... provided however, before the defendant [who has been convicted based on a negotiated plea and the trial court assesses punishment recommended by the prosecutor and agreed to by the defendant and his attorney] may prosecute his appeal, he must have the permission of the trial court, except on those matters which have been raised by written motion filed prior to trial...." ⁷ (Emphasis Supplied).

This proviso was a limited abrogation of the Helms rule; it allowed some appellate issues to be addressed on their merits in negotiated plea situations where the Helms rule otherwise applied in order "to conserve judicial resources by encouraging guilty pleas," and to prevent "windy" appeals. See Morris, 749 S.W.2d at 779 n. 12; Morgan, 688 S.W.2d at 513-14; King, 687 S.W.2d at 765. ⁸

This Court eventually decided a defendant's failure to comply with the proviso to Article 44.02 was jurisdictional, and a defendant had to obtain the trial court's permission to appeal a nonjurisdictional defect occurring after entry of the plea. See Morris, 749 S.W.2d at 774-75. In Morris, we held the Court of Appeals lacked jurisdiction to address the sufficiency of the evidence to support the defendant's plea-bargained conviction under Article 1.15, a nonjurisdictional defect occurring after entry of the plea, because the defendant failed to comply with the proviso to Article 44.02 by not obtaining the trial court's permission to appeal that issue. Morris, 749 S.W.2d at 774-75; see also Morgan, 688 S.W.2d at 515 ("If a defendant falls within the [proviso to Article 44.02], he has no right of appeal at all without the permission of the trial court save and except the appeal from rulings on certain pretrial matters").

By order dated December 18, 1985, this Court repealed the proviso to Article 44.02, and replaced it with Rule 40(b)(1), effective September 1, 1986. ⁹ See Lemmons, 818 S.W.2d at 62. In delegating authority to this Court to promulgate a comprehensive body of appellate rules in criminal cases, the Legislature expressly provided that these rules could not abridge, enlarge or modify the substantive rights of a litigant. ¹⁰ In promulgating Rule 40(b)(1), this Court acted on the assumption "that the body of caselaw construing the proviso [to Article 44.02] would prevail and still control." Lemmons, 818 S.W.2d at 62. In Jones v. State, 796 S.W.2d 183, 187 (Tex.Cr.App.1990), we held compliance with Rule 40(b)(1) was jurisdictional. ¹¹

In Davis v. State, 870 S.W.2d 43 (Tex.Cr.App.1994, decided this date), we held, based on Morris, the defendant's "general" notice of appeal under Rule 40(b)(1) in an appeal from a plea-bargained conviction failed to confer jurisdiction on the Court of Appeals to address the defendant's sufficiency of the evidence claim, a nonjurisdictional defect occurring after entry of the plea, and the trial court's ruling on the defendant's pretrial suppression motion, a nonjurisdictional error occurring prior to entry of the plea. Davis, 870 S.W.2d at 46-47. This holding also was based on a plain reading of Rule 40(b)(1) that made the rule consistent with Morris and the admonishment contained in Article 26.13(a)(3), V.A.C.C.P. Davis, 870 S.W.2d at 46. We have to interpret Rule 40(b)(1) this way so as not to modify a defendant's substantive right of appeal that previously existed under the proviso to Article 44.02. See Davis, 870 S.W.2d at 46; Tex. Gov't Code Ann. § 22.108(a) (Vernon 1988).

Therefore, we hold Rule 40(b)(1) requires a defendant, in an appeal from a plea-bargained conviction, to obtain the trial court's permission to appeal any matter in the case except for those matters raised by written motion and ruled on before trial. See Davis, 870 S.W.2d at 46-47; Morris, 749 S.W.2d at 774-75. A defendant's "general" notice of appeal confers no jurisdiction on a Court of Appeals to address nonjurisdictional defects or errors that occur before or after entry of the plea; a defendant's notice of appeal has to comply with the applicable provisions of the "but" clause of Rule 40(b)(1) to confer jurisdiction on a Court of Appeals to address these types of defects or errors. See Davis, 870 S.W.2d at 46-47; Morris, 749 S.W.2d at 774-75. A "general" notice of appeal confers jurisdiction on a Court of Appeals to address...