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 CARSON CONCURRENCE AND DISSENT — 2

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

1 484 S.W.2d 925, 927 (Tex. Crim. App. 1972). 2 Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). 3 Id. 4 Id. at 646-49. 5 See id. at 646. CARSON CONCURRENCE AND DISSENT — 3

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,

6 Harrelson v. State, 692 S.W.2d 659, 660 (Tex. Crim. App. 1985). 7 In Griffin, we held that the proviso also applied to jurisdictional claims. 145 S.W.3d at 648-49. 8 Jack v. State, 871 S.W.2d 741, 744 (Tex. Crim. App. 1994). 9 8 S.W.3d 656 (Tex. Crim. App. 2000). 10 Jacobsen v. State, 398 S.W.3d 195, 202 n.28 (Tex. Crim. App. 2013) (noting abrogation of Helms by Young); Young, 8 S.W.3d at 666 (“As we have said, the Helms Rule is not justified by its premises or its precedents. It has operated to deny the full benefit of the pre-trial hearing which was authorized in 1965. Largely abrogated by an act of the legislature, its continued existence is fundamentally at odds with the public policy that is expressed in that act: to increase efficiency and decrease costs by encouraging conditional pleas of guilty and discouraging trials that have only the purpose of preserving the ability to appeal issues that were fully resolved before the trial. This Court agrees with this policy. The Helms Rule shall no longer be enforced in the terms in which it was stated in 1972.”). 11 Young, 8 S.W.3d at 667. See also Rankin v. State, 46 S.W.3d 899, 901-02 (Tex. Crim. App. 2001; Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003). CARSON CONCURRENCE AND DISSENT — 4

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

12 See Court’s op., infra.