White, James Keelin v. State

Opinion

Concurring Opinion on Denial of En Banc Rehearing filed February 5, 2004

Concurring Opinion on Denial of En Banc Rehearing filed February 5, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-01-01251-CR

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JAMES KEELIN WHITE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 885,259

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C O N C U R R I N G   O P I N I O N   O N   D E N I A L   OF

E N   B A N C   R E H E A R I N G

            Burying a total waiver of appeal in the fine print of a guilty plea document and then having the defendant affirmatively acknowledge an admonishment suggesting, to the contrary, that he indeed has a limited right of appeal, is misleading.  To then penalize the defendant, who proposed neither provision, and reward the State, for such a sloppy practice is senseless and unjust.

            Wherever possible, courts construe statutes,^[1] judgments,^[2] jury findings,^[3] and contracts^[4] to harmonize inconsistent provisions and give effect to all.  The guilty plea document and admonishment in this case should be treated no differently.  In that context, the admonishment did not affect the voluntariness of the waiver of appeal, but merely its scope.  Reading the two provisions together, they simply operate much the same as Texas Rule of Appellate Procedure 25.2(a)(2), such that the right to appeal is waived except as to matters either raised by written pre-trial motion or for which the trial court gave its permission to appeal. 

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Motion for Rehearing En Banc Denied; Concurring Opinion on Denial of En Banc Rehearing filed February 5, 2004; Chief Justice Hedges and Justices Hudson, Seymore, and Guzman would grant rehearing en banc.

En Banc.

Publish — Tex. R. App. P. 47.2(b).

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^[1]           See Burke v. State, 28 S.W.3d 545, 546 (Tex. Crim. App. 2000).

^[2]           See Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003).

^[3]           See Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119 (1963).

^[4]           See MCI Telecomm. Corp. v. Texas Utils. Elec. Co., 995 S.W.3d 647, 652 (Tex. 1999).