Lyon v. State

872 S.W.2d 732, 1994 Tex. Crim. App. LEXIS 4, 1994 WL 5685

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 1994
• Docket: 225-89
• Status: Published

Opinions

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.RApp.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); Moms 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 [tvho 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 Moms, 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. Moms, 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), Y.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 entiy 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 only jurisdictional issues. See Davis, 870 S.W.2d at 46-47; Morris, 749 S.W.2d at 774-75.

Appellant argues the trial court’s order granting him a “free” transcript and statement of facts constituted implied permission to appeal the issues set out in his notice of appeal. We disagree. The record clearly reflects the trial court refused to grant appellant permission to appeal the issues set out in his notice of appeal. Therefore, the Court of Appeals had jurisdiction to consider only appellant’s jurisdictional issues. Appellant’s first ground for review is overruled.

Appellant also argues the Court of Appeals erred in failing to address his sufficiency and ineffective assistance of counsel claims. These are not jurisdictional issues; therefore, the Court of Appeals had no jurisdiction to address them. See Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Cr.App.1981) (jurisdiction is the power of the court over the “subject matter” of the case, conveyed by statute or constitutional provision, coupled with “personal” jurisdiction over the accused). Appellant’s second and third grounds for review are overruled.

Appellant argues the trial judge’s relationship to the victim constitutionally and statutorily disqualified him from sitting in the case. This issue is jurisdictional, and the Court of Appeals was correct in addressing it on the merits. See Ex parte Vivier, 699 S.W.2d 862, 863 (Tex.Cr.App.1985). The record reflects the trial judge’s daughter is married to the victim’s brother. The Court of Appeals held the trial judge’s relationship to the victim did not disqualify him from sitting in the case. Lyon, 764 S.W.2d at 2.

Article V, Section 11 of our Constitution states, in pertinent part:'

“No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity, or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.”

Article 30.01, supra, states:

“No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree.”

Appellant argues the trial judge and the victim were related by affinity within the third degree. We disagree.

“Affinity is the tie which exists between one of the spouses with the kindred of the other: thus, relations of my wife, her brothers, her sisters, her uncles, are allied to me by affinity, and my brothers, sisters, etc., are allied in the same way to my wife. But my brother and the sister of my wife are not allied by ties of affinity.”

Washburn v. State, 167 Tex.Crim. 125, 318 S.W.2d 627, 629 (1958) cert. denied, 359 U.S. 965, 79 S.Ct. 876, 3 L.Ed.2d 834 (1959). Here, the victim is not part of the kindred of the trial judge’s wife; therefore, no affinity exists between the trial judge and the victim even though the trial “judge’s daughter was related by affinity to the victim.” Lyon, 764 S.W.2d at 2; see also Johnson v. State, 169 Tex.Crim. 146, 332 S.W.2d 321, 322 (1960); Washburn, 318 S.W.2d at 639.¹²

Finally, appellant contends the trial judge was biased against him in violation of the Texas Code of Judicial Conduct, Tex. Gov’t Code Ann., Title 2, Subtitle G—Appendix (Vernon 1988). Where a trial judge is not constitutionally or statutorily disqualified to preside over a case, as here, a trial judge’s bias, standing alone, is not error. See Vera v. State, 547 S.W.2d 283, 285 (Tex.Cr.App.1977); Aldridge v. State, 170 Tex.Crim. 502, 342 S.W.2d 104, 107 (1960). Therefore, this is not a jurisdictional issue. Appellant’s fourth ground for review is overruled.

The judgment of the Court of Appeals is affirmed.

1 . The record reflects no pretrial motions were filed in the case.

2 . The record also reflects appellant was unrepresented by counsel in his appeal to the Court of Appeals even though the trial court made a finding appellant was indigent and ordered the preparation of the transcript and statement of facts at taxpayers' expense to be furnished "to the Defendant, Pro-se.” The record reflects appellant has refused court-appointed counsel from Bowie County. After granting appellant's pro se petition for discretionary review, we allowed pro bono counsel to represent appellant "without court appointment or being retained.” We have considered the briefs and other documents filed by appellant and pro bono counsel. The State has not filed a brief; it filed a document here stating its position is adequately set out in the five-page brief it filed in the Court of Appeals.

3 .In relevant part, Rule 40(b)(1) states:

"Appeal is perfected In a criminal case by giving timely notice of appeal; except, it is unnecessary to give notice of appeal in death penalty cases. Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in 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 and ruled on before trial....” (Emphasis Supplied).

4 . Article 44.02 provided:

"A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.”

5 . Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972).

6 . See Acts 1977, 65th Leg., p. 940, ch. 351, § 1, eff. August 29, 1977.

7 . This proviso literally required a defendant to obtain the trial court's permission to appeal any matter except for those matters raised by written motion filed prior to trial.

8 . The Helms rule remains viable in an appeal from a conviction based on a guilty plea where no plea bargain has been reached. See Morgan, 688 S.W.2d at 515; King, 687 S.W.2d at 765.

9 . See Act of August 26, 1985, 69th Leg., ch. 685, §§ 1-4, 1985 Tex.Gen.Laws 2472-2475 (authorizing this 'Court to promulgate rules of procedure and evidence in criminal cases).

10 . See Act of August 26, 1985, 69th Leg., ch. 685, § 1, 1985 Tex.Gen.Laws 2472. Now codified in Tex.Gov’t Code Ann. § 22.108(a) (Vernon 1988).

11 . In Jones, the State argued that "appellant’s [general] notice of appeal only invoked jurisdiction of the Court of Appeals to consider the limited issues of jurisdictional defects or matters arising after the entry [of the] plea, and not on the merits of appellant's pre-trial motion [to quash the indictment]." (Emphasis Supplied) This position is inconsistent with our holdings in Morris, Davis, and this case.

12 . Appellant also claims Article 30.01 incorporates the definition of "secondary affinity” contained in Black’s Law Dictionary (4th Ed.), which is defined as affinity between "the husband and the wife’s relations by marriages [and vice versa]." Appellant argues the trial judge and the victim were related by secondary affinity. Article 30.01 clearly does not include "secondary affinity” as defined in Black’s. See also Johnson, 332 S.W.2d at 322. Moreover, assuming "affinity” under Article 30.01 included "secondary affinity” as defined in Black’s, the victim is not a relation of the trial judge’s wife; therefore, appellant's argument fails because the relationship between the trial judge and the victim does not come within the definition of “secondary affinity-"