Carson, Gary

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-0205-17, PD-0206-17, PD-0207-17, & PD-0208-17 GARY CARSON, Appellant v. THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

BOWIE COUNTY K ELLER, P.J., filed a concurring and dissenting opinion.

The Court holds that Appellant validly waived his right to appeal, but then it remands the case for the court of appeals to decide whether Appellant meets an exception to the waiver rules. The “exception” to which the Court refers, however, is not an exception to an explicit waiver of appeal. It is an exception to what is known as the Helms rule, which dictated that certain types of error were impliedly waived by a defendant’s guilty plea. As I explain later, this “exception” largely abrogated the Helms rule, making the Helms rule the “exception” to a general rule allowing appeals from non-negotiated guilty pleas, absent an explicit waiver of appeal.

In 1972, this Court held in Helms v. State, that where a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects, including claimed deprivations of federal due process, are waived.1 The Helms rule discouraged guilty pleas because it forced a defendant to go to a full trial on the merits if he wanted to preserve issues for appeal.2

In response to Helms, the legislature amended Article 44.02 in 1977 to add this proviso, which created a somewhat different rule for plea bargains:

. . . provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment 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 trial court, except on those matters which have been raised by written motion filed prior to trial.3

In Griffin, we held that this new rule eliminated appeals in negotiated pleas for all types of claims where the punishment did not exceed that agreed upon, but created exceptions for matters raised by written pretrial motion (and ruled upon) or on which the trial court had granted permission to appeal.4 By allowing a defendant to enter a negotiated plea and nevertheless preserve issues by pretrial motion (or with the trial court’s permission), the amendment encouraged plea bargains and discouraged the practice of trying cases solely in order to preserve an issue for appeal.5

But the proviso applied only to negotiated pleas. The Helms rule remained in effect for non- negotiated pleas of guilty.6 We later clarified, however, that the Helms waiver principle applied only to defects occurring before the entry of the plea, so a full statement of the Helms rule was that a (non- negotiated) guilty plea resulted in the (implied) waiver of nonjurisdictional7 defects occurring prior to the entry of the plea.8 Then, in Young v. State,9 we largely abrogated the Helms rule10 by holding that a non-negotiated guilty plea waived or forfeited the right to appeal a claim of error only when the judgment of guilt was rendered independent of and not supported by the error.11

Appellant asks us to consider whether the Young exception allows him to appeal his conviction in spite of any implied waiver under Helms. It may well be Young would do so if Appellant’s waiver of appeal were just an implied waiver, because Young pretty much did away with the idea that a non-negotiated guilty plea forfeits the right to appeal. But our caselaw imposing, clarifying, and then largely abrogating a rule that a guilty plea gave rise to a limited, implied waiver of appeal has no bearing on the effect of an explicit waiver of appeal. All that is required of an explicit waiver of appeal is that the waiver be made voluntarily, knowingly, and intelligently.12 Because Appellant executed an explicit waiver of appeal, the Helms/Young/Rankin line of cases cannot provide Appellant the relief that he seeks.

I concur in the Court’s decision to reverse the court of appeals’s judgment on the basis that Appellant validly waived his right to appeal, but I dissent from the decision to remand for further proceedings.

Filed: September 19, 2018 Publish