Marshall v. State, 13-99-00153-CR

• Decision Date: 10 August 2000
• Docket Number: No. 13-99-00153-CR,13-99-00153-CR
• Citation: 28 S.W.3d 634
• Parties: (Tex.App.-Corpus Christi 2000) JAMES ODELL MARSHALL, Appellant, v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 634

28 S.W.3d 634 (Tex.App.-Corpus Christi 2000)

JAMES ODELL MARSHALL, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-99-00153-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

August 10, 2000

On appeal from the 347th District Court of Nueces County, Texas. [Copyrighted Material Omitted] Before Chief Justice Seerden and Justices Dorsey and Yanez.

OPINION

Opinion by Justice Yanez.

Pursuant to a plea bargain agreement, James Odell Marshall pleaded guilty to the offense of murder¹ and was sentenced to life in the Institutional Division of the Texas Department of Criminal Justice. By a single issue, he contends he was denied effective assistance of counsel, and that the lack of effective assistance rendered his plea involuntary. We affirm.

Jurisdiction

Before reaching the merits of this case, we address the State's contention that this Court lacks jurisdiction to consider this appeal. Because Marshall appeals from a judgment rendered on a plea of guilty pursuant to a plea bargain, and the punishment assessed was within the range agreed to by the prosecutor and the defendant, we must consider the threshold issue of whether Marshall's general notice of appeal is sufficient to confer jurisdiction on this Court.

Texas Rule of Appellate Procedure 25.2(b)(3) limits our jurisdiction over appeals from plea-bargained convictions. The rule provides, in relevant part:

[I]f the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere. . . the notice must:

(A) specify that the appeal is for a jurisdictional defect [new];

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial [same as old rule]; or

(C) state that the trial court granted permission to appeal [same as old rule].

See Tex. R. App. P. 25.2(b)(3). Rule 25.2(b)(3) replaces former rule 40(b)(1),² which provided:

[I]n order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion ruled on before trial.

Under former rule 40(b)(1), a plea-bargaining defendant who failed to comply with the notice requirements of the rule could nevertheless challenge jurisdictional issues and the voluntariness of his plea. Flowers v. State, 935 S.W.2d 131, 132-34 (Tex. Crim. App. 1996).

The advent of rule 25.2(b)(3), however, sparked debate about whether the appellate courts may still consider the voluntariness of a plea when an appellant files only a general notice of appeal and thus, fails to comply with the rule's extra-notice requirements. See Davis v. State, 7 S.W.3d 695, 696 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (noting split of authority in courts of appeals and citing cases).

The overwhelming majority of Texas appellate courts that have considered the issue have held that under Flowers, the right to challenge the voluntariness of a plea can always be challenged on appeal. See, e.g., Davis, 7 S.W.3d at 696; Moore v. State, 4 S.W.3d 269, 272 (Tex. App.--Houston [14th Dist.] 1999, no pet.); Lowe v. State, 997 S.W.2d 670, 672 n.2 (Tex. App.--Dallas 1999, no pet. h.); Minix v. State, 990 S.W.2d 922, 923 (Tex. App.--Beaumont 1999, pet. ref'd); Price v. State, 989 S.W.2d 435, 437-38 (Tex. App.--El Paso 1999, pet. ref'd); Hernandez v. State, 986 S.W.2d 817, 820 (Tex. App.--Austin 1999, pet. ref'd); Luna v. State, 985 S.W.2d 128, 129-30 (Tex. App.--San Antonio 1998, pet. ref'd); Vidaurri v. State, 981 S.W.2d 478, 479 (Tex. App.--Amarillo 1998, pet. granted); Session v. State, 978 S.W.2d 289, 291-92 (Tex. App.--Texarkana 1998, no pet.); Johnson v. State, 978 S.W.2d 744, 745-46 (Tex. App.--Eastland 1998, no pet.).

By contrast, the Fort Worth and Waco courts of appeal have held that rule 25.2(b)(3) overrules Flowers. See Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex. App.--Fort Worth 1998, no pet.); Long v. State, 980 S.W.2d 878, 878 (Tex. App.--Fort Worth 1998, no pet.); Elizondo v. State, 979 S.W.2d 823, 824 (Tex. App.--Waco 1998, no pet.). The Fort Worth and Waco courts have concluded that under rule 25.2(b)(3), a defendant may challenge the voluntariness of his plea only after obtaining the trial court's permission and specifying so in a notice of appeal. See Villanueva, 977 S.W.2d at 696; Long, 980 S.W.2d at 878; Elizondo, 979 S.W.2d at 824.

The Villanueva and Elizondo courts have reasoned that the court of criminal appeals was aware of the voluntariness exception enunciated in Flowers, and by failing to specifically incorporate the exception into the new rule, implicitly overruled Flowers. See Villanueva, 977 S.W.2d at 693-95; Elizondo, 979 S.W.2d at 824. In support, the Villanueva court relied on comments made by two court of criminal appeals justices when the rule was initially proposed. The court noted the justices' statements that the new rule precludes a defendant from raising a complaint of involuntariness on appeal. See Villanueva, 977 S.W.2d at 695 (quoting court of criminal appeals Justices Baird and Overstreet in a "Statement Accompanying Approval of Revisions" to the new rules). The Elizondo court also stated that such a rule is desirable because the trial court is in a better position to evaluate the voluntariness of the plea. Elizondo, 979 S.W.2d at 824.

We are persuaded by the reasoning of the majority of our sister courts. In examining the text of both rules, we note the former rule is extremely similar to the present rule. Despite speculation about whether the court of criminal appeals intended to implicitly overrule Flowers by promulgating the new rule,³ the court has not addressed whether Flowers applies to rule 25.2(b)(3). While rule 25.2(b)(3) restructures the content of former rule 40(b)(1), the substantive meaning of the rule remains, on its face, unchanged. The text of rule 25.2(b)(3) contains no statement that it is intended to overrule Flowers, either in whole or in part. In light of the similarities between the old and new rules, we conclude that the holding and rationale of Flowers still applies.

We find the reasoning of the Villanueva and Elizondo courts unsound and unpersuasive. The Villanueva court notes that although "the new rule covers generally the same subject matter" as the former rule, its silence regarding voluntariness is significant. Villanueva, 977 S.W.2d at 695. The court concludes "[t]his omission . . .seems intentional." Id. We conclude it is more persuasive to assume that the court of criminal appeals, aware of Flowers, intended appellate courts to continue applying Flowers, and thus, found no need to alter the new rule substantially. Even if persuaded to embrace the interpretation of rule 25.2(b)(3) urged by the Waco and Fort Worth courts, we reject the notion that the court of criminal appeals was authorized to implicitly overrule Flowers. In granting the court of criminal appeals its rulemaking power, the legislature has specified that the court of criminal appeals may not abridge, enlarge, or modify the substantive rights of a litigant. See Tex. Gov't Code Ann. 22.108 (Vernon 2000).

Moreover, we conclude that the Villanueva and Elizondo courts' reliance on comments by court of criminal appeals justices regarding interpretation of the new rule is misplaced. See Villanueva, 977 S.W.2d at 695; Elizondo, 979 S.W.2d at 824 n.1. In finding such comments "persuasive," the Villanueva court reached outside the text of the rule to interpret its meaning. Villanueva, 977 S.W.2d at 695. Comments by court of criminal appeals justices are not binding authority on this Court.

We hold Marshall's general notice of appeal⁴ is sufficient to invoke this Court's jurisdiction to consider the voluntariness of his plea.

Applicable Law

Appellant contends his guilty plea was involuntary as the result of ineffective assistance of counsel.⁵

Ineffective assistance of counsel may be raised indirectly as affecting the voluntariness of the plea, since a guilty plea is not knowing or voluntary if made as a result of ineffective assistance of counsel. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App.1980); Melton v. State, 987 S.W.2d 72, 77 (Tex. App.--Dallas 1998, no pet.); Diaz v. State, 905 S.W.2d 302, 308 (Tex. App.--Corpus Christi 1995, no pet.).

"When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, 'the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)); Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999). An appellant must prove ineffective assistance of counsel by a preponderance of the evidence. Ex parte Morrow, 952 S.W.2d at 536.

In any case analyzing the effective assistance of counsel, we begin with the strong presumption that counsel was competent. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson, 877 S.W.2d at 771. An appellant has the burden of rebutting this presumption by presenting evidence illustrating why trial counsel did what he did. See id.

Once an accused attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to prove on appeal that his plea was involuntary. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.--Houston [1st Dist.] 1996, no pet.); see also Crawford v. State, 890 S.W.2d 941,...