McCormick, P.J., delivered a dissenting opinion, in which Mansfield and Keller, JJ, joined.

I respectfully dissent. In this case a significant event occurred and the basic purpose of the criminal justice system was accomplished when, without the benefit of a plea-bargain, appellant voluntarily pled guilty in open court to the charged offense.⁽¹⁾ This admittedly guilty appellant now wants an appellate reversal of her conviction based on a claimed violation of her Fourth Amendment rights. This claimed Fourth Amendment violation occurred before, and had nothing to do with, appellant's guilty plea. Instead of voluntarily admitting her guilt, appellant had the option of contesting her guilt at trial and pursuing her Fourth Amendment claim in the trial court and on appeal. She also had the option to testify pretrial for the "limited purpose" of preserving her Fourth Amendment claim with no danger that her pretrial testimony would be used against her at trial.⁽²⁾

The criminal justice system's basic and overriding purpose is to ascertain the truth.⁽³⁾ The ascertainment of truth, however, is not always "the only objective of our law of criminal procedure" because we "as a people have deliberately chosen to adopt laws which interfere with the truth-seeking function of the criminal trial." See Leday v. State, 983 S.W.2d 713, 724-25 (Tex.Cr.App. 1998). Excluding reliable and probative evidence of a crime and freeing a guilty defendant because of a Fourth Amendment violation is one of these rules.⁽⁴⁾

The dynamics of the situation change, however, when a defendant admits her guilt in open court. When this happens, the criminal justice system's basic purpose of ascertaining the truth outweighs or "renders irrelevant" the defendant's interest in pursuing a Fourth Amendment claim. Compare Leday, 983 S.W.2d at 723 (voluntary guilty plea "waives" all previous nonjurisdictional errors), with, Leday, 983 S.W.2d at 731-32 (McCormick, P.J., dissenting) (this rule not based on "waiver" but on idea that voluntary guilty plea "renders irrelevant" previous nonjurisdictional errors). Generally a defendant is not permitted to "have her cake and eat it too" by pleading guilty and also pursuing a Fourth Amendment claim. This upsets the delicate balance, the "constant struggle in American criminal" jurisprudence, "between truth-finding and other values." See Leday, 983 S.W.2d at 725.

Here, it is clear and the Court's opinion also recognizes that precluding appellant from raising her Fourth Amendment claim offends no principle of federal constitutional law.⁽⁵⁾ And until now, as a matter of state law, the "Helms Rule"⁽⁶⁾ would have precluded appellant from raising her Fourth Amendment claim because the Helms Rule in striking the delicate balance "between truth-finding and other values" adopted the principle that a voluntary guilty plea "renders irrelevant" previous nonjurisdictional errors.

The Court now holds the Helms Rule does not preclude appellant from raising her Fourth Amendment claim because her judgment of guilt "would not be supported" without the evidence that appellant claims was seized in violation of the Fourth Amendment. This holding rests in part on the Court's conclusion that "the Helms Rule is not justified by its premises or its precedents" and on an examination of a defendant's statutory right to appeal as it existed before this Court's Helms decision in 1972.⁽⁷⁾ These considerations, however, are irrelevant to the issue presented in this case even if the Helms Rule is not justified "by its premises or its precedents" and even if the Helms Rule misconstrued a defendant's pre-1972 statutory right "to appeal anything."

The decision in this case essentially boils down to examining what the Legislature did in 1977 in response to Helms. Then the general rule by virtue of Helms was that all guilty-pleading defendants were precluded from raising appellate complaints about matters or "deprivation of constitutional rights" occurring before the plea even if these errors supported the judgment of guilt.

In 1977 the Legislature effectively codified the Helms Rule when, having the opportunity to abrogate this rule in its entirety and to restore a defendant's pre-1972 right "to appeal anything," it made through the proviso to Article 44.02, V.A.C.C.P.,⁽⁸⁾ only a "limited abrogation" of the Helms Rule with respect to plea-bargained or conditional guilty pleas.⁽⁹⁾ This legislative action left the remainder of the Helms Rule intact. And, despite many opportunities to do so, the Legislature has not taken any action to change our post-1977 decisions that have applied the Helms Rule to non-plea-bargained guilty pleas.

So, even though the Helms Rule might not have been justified "by its premises or its precedents" and even though it might have been inconsistent with a defendant's pre-1972 statutory right "to appeal anything," the Legislature's "limited abrogation" of the Helms Rule clearly indicates a legislative approval of the Helms Rule subject to the 1977 proviso. Otherwise, the Legislature would have entirely abrogated the Helms Rule. The Court's opinion contravenes this clear legislative intent and policy which we are bound to follow even if, as the Court's opinion says, it is "fundamentally at odds" with the public policy expressed in the 1977 proviso.⁽¹⁰⁾

It also is noteworthy that the Court's opinion retains some of the Helms Rule for errors that are independent of the judgment of guilt. See Young, S.W.3d at Slip op. at 21-22 (Helms Rule still "renders irrelevant" any errors that are independent of the judgment of guilt). But, if, as the Court's opinion seems to say, the 1977 proviso was meant to "largely abrogate" the Helms Rule and to restore a defendant's pre-1972 right "to appeal anything," then the Court should be holding that a defendant has a right "to appeal anything" and not just those errors that support the judgment of guilt.

Finally, the Court's opinion also contains a significant holding with respect to plea-bargained or conditional guilty pleas that heretofore has not been the law. Contrary to the "plain" language of the 1977 proviso, the Court's opinion also holds a conditional guilty plea "forfeits" the right to appeal "a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error." See Young, S.W.3d at Slip op. at 21-22. Until now a conditional guilty plea did not "forfeit" the right to appeal these errors.

I respectfully dissent.

McCormick, Presiding Judge

(Delivered January 5, 2000

En Banc

Publish

Mansfield and Keller, JJ., join this dissent

1. See McGlothlin v. State, 896 S.W.2d 183, 191 (Tex.Cr.App.) (Meyers, J., dissenting), cert. denied, 116 S.Ct. 219 (1995).

2. See Nelson v. State, 765 S.W.2d 401, 403 (Tex.Cr.App. 1989).

3. See, e.g., United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2593, 91 L.Ed.2d 305 (1986) (Powell, J., concurring in the judgment).

4. See Kimmelman, 106 S.Ct. at 2593 (Powell, J., concurring in the judgment); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 1701-08, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting).

5. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

6. Helms v. State, 484 S.W.2d 924, 927 (Tex.Cr.App. 1972).

7. The gist of the Court's discussion that the Helms Rule "is not justified by its premises or its precedents" is that the Helms Rule is based on federal decisions under which a guilty plea alone is sufficient to support a judgment of guilt. See Young v. State, S.W.3d Slip op. at 8-10 (Tex.Cr.App. No. 1579-96, delivered this date). The Court's opinion says Helms' reliance on these federal decisions is misplaced because of Texas' "unique requirement that, if a jury trial has been waived, the judgment of guilt in a felony case must be supported by evidence even when a plea of guilty was entered." See Young, S.W.3d at Slip op. at 9.

The Court also observes that before Helms a defendant had a statutory right "to appeal anything" and that Helms "operated to deny the full benefit of the pre-trial hearing which was [legislatively] authorized in 1965." See Young v. State, S.W.3d at Slip op. at 18 fn 24, 21; Acts 1965, 59^th Leg., R.S., ch. 722, Section 1, codified in Article 44.02, V.A.C.C.P. So, according to the Court's opinion, Helms was inconsistent with this 1965 legislative enactment allowing a defendant "to appeal anything."

8. Now Tex.R.App.Proc. 25.2(b)(3).

9. The Court's opinion claims this 1977 proviso "largely abrogated" the Helms Rule. See Young, S.W.3d at Slip op. at 21. Our cases, however, recognize that this was only a "limited abrogation" of the Helms Rule. See Lyon v. State, 872 S.W.2d 732, 734-35 (Tex.Cr.App.), cert. denied, 114 S.Ct. 2684 (1994).

10. The Court's opinion says the Helms Rule is "fundamentally at odds" with the public policy expressed in the 1977 proviso "to increase efficiency and decrease costs by encouraging conditional guilty pleas." See Young, S.W.3d at Slip op. at 21. I disagree. The Helms Rule is consistent with this public policy of encouraging conditional guilty pleas. See Leday, 983 S.W.2d at 735 fn 14 (McCormick, P.J., dissenting). With the Helms Rule a defendant would be encouraged to conditionally plead guilty with the right to appeal certain issues while a defendant who does not conditionally plead guilty would lose her right to appeal these issues. See id. The Court's opinion arguably puts a defendant who wastes time and resources by pleading guilty during trial in the same or in a better position as a defendant who conditionally pleads guilty pretrial. See id. This is inconsistent with the public policy of the 1977 proviso.