REVIEW FROM THE TENTH COURT OF APPEALS

DISSENTING OPINION

Today the majority limits the scope of habeas corpus to those errors that are "jurisdictional," "fundamental," or "constitutional." In doing so, the Court effectively overrules one hundred years of precedent. This Court has long held that habeas corpus is an appropriate remedy to attack a void judgment or sentence. See Ex parte Seidel, 39 S.W.3d 221, 224, 225 at n. 4 (Tex.Crim.App. 2001); Ex parte Beck, 922 S.W.2d 181 (Tex.Crim.App. 1996); Heath v. State, 817 S.W.2d at 336 (Tex.Crim.App. 1991) (opinion on original submission); Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979). Otherwise, many defendants, such as Mr. McCain, are left without a remedy even though there has been a clear violation of a mandatory statute. ⁽¹⁾ Because I conclude that the Legislature could not have intended such a result and that void sentences and convictions are properly cognizable on habeas corpus, I respectfully dissent.

I.

Appellant, Steven Jerald McCain, was charged with the felony offense of indecency with a child. See Tex. Pen. Code § 21.11(a)(2). On June 11, 1999, appellant appeared before the trial court and waived his right to be charged by grand jury indictment, ⁽²⁾ right to counsel, right to trial by jury, and right to confront and cross-examine witnesses. Appellant then entered, pursuant to a plea bargain, a plea of nolo contendere to the charged offense. The trial court accepted the plea and found appellant guilty. The trial court then sentenced appellant to six years in prison, probated for a term of six years, in accordance with the plea bargain. Appellant was notified of his right to appeal, but he did not do so. He did not have the benefit of counsel at any point in this process.

Instead, appellant, a seventeen-year-old high school drop-out, eager to settle the matter by accepting probation, was hurried through the process by a judge and prosecutor equally anxious to settle the matter. During the hearing on appellant's plea, the following exchange took place:

THE COURT: Mr.Dent over here to your left is a very fine gentleman, a good lawyer, and a fine attorney, but you need to understand that he's the District Attorney of Hill County, Texas. He has, as his client, the State of Texas. He cannot represent you at the same time he represents the State. That would put him in a real tough position to try to do both, and you need to understand that he cannot do that. Likewise, I, as the judge of this court, cannot - - I do not favor one side or the other, but instead, my job is entirely different than being your attorney. Do you understand that?

APPELLANT: Yes, sir.

THE COURT: And I can give you no legal advice, so if you insist on waiving your right to an attorney, you'll be looking to yourself for your own counsel. Do you understand?

APPELLANT: Yes, sir.

THE COURT: Do you want me to approve this Waiver of Counsel form that you've signed?

APPELLANT: Yes, sir.

THE COURT: The court will do so. Now, it appears as if you've signed a document here advising me that you've never been convicted of a felony in this or any other state and are asking for probation. Have you signed this document for the purposes and considerations therein expressed and upon your oath?

APPELLANT: Yes, sir.

THE COURT: It also appears as if you've signed a document here entitled Waiver of Trial By Jury and Agreement to Stipulate Testimony. Do you have any questions about any of the matters contained therein?

APPELLANT: No, sir.

THE COURT: In that document, it appears that you want to give up or waive your right to a jury trial, waive any waiting period you're entitled to, and also waive the appearance, confrontation, and cross-examination of witnesses. Is this your signature in two places on this document?

APPELLANT: Yes, it is.

THE COURT: And do you want me to approve these waivers?

APPELLANT: Yes, sir.

THE COURT: The court will do so.

While it clear that appellant waived his right to a jury trial, it is equally clear that the trial court, presumably with full knowledge of the requirements of Article 1.13(c), allowed him to waive his right to a jury trial without the benefit of counsel. ⁽³⁾

On September 27, 1999, the State filed a motion to revoke probation. Appellant was arrested and then, finally, appointed counsel. Prior to the disposition of the motion to revoke, appellant applied for a writ of habeas corpus. See Tex. Code Crim. Proc. § 11.08; Ex parte Twyman, 716 S.W. 2d 951 (Tex.Crim.App. 1986). Appellant argued that compliance with Article 1.13(c) was mandatory and that the failure to appoint counsel prior to his jury trial waiver rendered his subsequent conviction void. The trial court granted the writ, conducted a hearing, and denied relief.

On appeal, appellant reiterated his argument that noncompliance with Article 1.13(c) rendered his conviction void. The Tenth Court of Appeals disagreed and held that because the "Helms rule" applied, appellant was barred from asserting his complaint on appeal. McCain v. State, 24 S.W. 3d 565, 568 (Tex.App.--Waco 2000). The Court of Appeals reasoned that failure to appoint counsel in compliance with Article 1.13(c) was nonjurisdictional error that occurred before the entry of appellant's plea and was therefore waived by the voluntary plea of nolo contendere. We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred. ⁽⁴⁾ See Tex. R. App. Proc. 66.3(b) & (c).

In his brief to this Court, appellant argues, in essence, that the trial court was required to appoint counsel before he could waive his right to a jury trial and that it was error for the Court of Appeals to hold otherwise. Appellant gives three reasons in support of his argument: (1) the clear language of Article 1.13(c) requires the appointment of an attorney, (2) case law has established that the requirements of Article 1.13(c) are mandatory and failure to comply renders a subsequent conviction void, and (3) the "Helms rule" does not apply to void convictions.

II.

The majority holds that a violation of a statute, in this case Article 1.13(c), is not cognizable on a writ of habeas corpus. I disagree in the strongest terms. Article 1.13(c) provides that "[a] defendant may agree to waive a jury trial regardless of whether the defendant is represented by an attorney at the time of making the waiver, but before a defendant charged with a felony who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him." ⁽⁵⁾ Before today, it was settled that the requirements of Article 1.13(c) were mandatory and that failure to comply with those requirements rendered a subsequent conviction void. Ex parte Ross, 522 S.W.2d 214, 223 (Tex.Crim.App. 1975), cert denied, 423 U.S. 1018, 96 S.Ct. 454, 46 L.Ed.2d 390 (1975); Ex parte Burns, 441 S.W.2d 532 (Tex.Crim.App. 1969); Ex Parte Jenkins, 433 S.W.2d 701 (Tex.Crim.App. 1968); Ex parte Strother, 395 S.W.2d 629 (Tex.Crim.App.1965); Ex parte Higginbotham, 382 S.W.2d 927 (Tex.Crim.App. 1964); Ex parte Rawlins, 158 Tex.Crim. 346, 255 S.W.2d 877 (Tex.Crim.App. 1953); Wilson v. State, 157 Tex.Crim. 642, 252 S.W.2d 197 (Tex.Crim.App. 1952); Hernandez v. State, 138 Tex.Crim. 4, 133 S.W. 2d 584 (Tex.Crim.App. 1939). We most recently recognized this principle in Ex parte Ross, where Presiding Judge Onion, writing for the Court, stated that "[t]he provisions of Article 1.13, and its predecessor Article 10a are mandatory;^{[ (6)]} before a defendant who has no attorney can agree to waive a jury trial in a non-capital felony, the court must appoint an attorney to represent him or the resulting conviction will be void." 522 S.W.2d at 223. Moreover, it was equally settled that a void conviction may be challenged in a post-conviction habeas corpus proceeding. Beck, 922 S.W.2d 181; Heath, 817 S.W.2d at 336; Ex parte McIver, 586 S.W.2d 851; Burns, 441 S.W.2d 532; Jenkins, 433 S.W.2d 701; Higginbotham, 382 S.W.2d 927; Strother, 395 S.W.2d 629; Rawlins, 255 S.W.2d 877.

The majority attempts to redefine void convictions as "those in which the trial court lacked jurisdiction over the person or subject matter or in which the trial judge lacked qualification to act in any manner." As support for this proposition, the majority, incredibly, cites the dissenting opinion in Seidel. In Seidel, an opinion decided less than a year ago, a majority of this Court held that a trial court's dismissal of a prosecution with prejudice was "void" and that it could be collaterally attacked. 39 S.W.3d 221. We specifically stated that "the trial judge's action was more than a mere violation of statutory procedure. The trial judge's action was not authorized by law and was, therefore void." Id at 225. (Emphasis added). We also recognized that other "non-jurisdictional" errors, such as "illegal" or "unauthorized" punishments, can render a judgment void and, therefore, subject to collateral attack. Id. at 225 and n.4.

If such an action by the trial court in Seidel rendered the dismissal void, then an even stronger case can be made that the violation of Article 1.13(c) in the instant case rendered the resulting conviction void. By Article 1.13(c), the Legislature has specifically prohibited a trial court from accepting a defendant's waiver of a jury trial until the court has appointed an attorney to represent him. Here, not only was "[t]he trial judge's action ... not authorized by law ...," Seidel, 39 S.W.2d at 225, the action was specifically prohibited by statute. Requiring an objection at trial in these circumstances would lead to a Catch-22 situation: a defendant must object to not having an attorney appointed to advise him as to waiver of jury trial, without having been advised by an attorney that he was entitled to such representation and advice. Given the absurdity of such a situation, we chose in the past to characterize the resulting conviction as "void" and allow the defendant to raise the issue in a habeas corpus proceeding. Otherwise, defendants, such as appellant, are left without a remedy even though there has been a clear violation of a mandatory statute.

Moreover, as a matter of policy we have tried, in our approach to habeas corpus cognizability, to strike a reasonable balance between a convicted person's interest in the vindication of his legal rights and the State's interest in the finality of convictions. ⁽⁷⁾

Thus, in a long line of cases, most notably Heath and Seidel, we have held that some defects, even though they are "just" statutory defects, are so egregious that they are cognizable on habeas corpus. See Heath, 817 S.W.2d at 336; Seidel, 39 S.W.3d 221 at 225; Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979). In Heath, we characterized these defects as rendering the conviction "void." 817 S.W.2d at 336. However, we could have properly characterized as "fundamental" errors those "unauthorized sentences" and "statutory defects" which render a sentence void. No matter what we choose to call these "errors," the underlying purpose is the same: to balance a convicted person's interest in the vindication of his legal rights and the State's interest in the finality of convictions.

In Texas, a defendant has a statutory right to have counsel appointed before he can waive his right to a jury trial. The Legislature has decided that the right to a jury trial is so important that before a defendant can waive that right, he should have the opportunity to consult with counsel. If a trial court denies a defendant that right by refusing to appoint counsel, equity demands that the balance be struck in favor of the defendant. Therefore, a defendant should be allowed to contest, in a habeas corpus proceeding, a violation of Article 1.13(c).

III.

Here, there is no question that appellant was not appointed an attorney in compliance with Article 1.13(c) before waiving his right to a jury trial. Hence, it is clear to me, based both on precedent and equity, that appellant's conviction is void and can be collaterally attacked through a writ of habeas corpus. The trial court erred in denying appellant relief, and the Court of Appeals erred in affirming the trial court's decision. Accordingly, I would reverse the judgment of the Court of Appeals and set aside appellant's original plea.

DELIVERED JANUARY 9, 2002

PUBLISH

1. Article 1.13(c) of the Texas Code of Criminal Procedure provides that before a felony defendant may agree to waive a jury trial, "the court must appoint an attorney to represent him." (Emphasis added.)

2. This Court has also held that the failure to appoint counsel prior to the waiver of a grand jury indictment can render a subsequent conviction void. King v. State, 473 S.W.2d 43 (Tex.Crim.App. 1971)("If an accused has not effectively waived his right to an indictment in full accordance with the statute the felony information is void. An indictment is still mandatory in absence of a valid waiver. For the waiver to be effective it must be intelligently, voluntarily and knowingly given by the accused while represented by counsel.") (Emphasis added.)

3. The Tenth Court of Appeals characterized the trial court's performance as "exemplary." As a practical matter, trial court judge's are well aware that before a defendant can waive his right to a jury trial, he must be appointed counsel. Hence, I do not understand how a seemingly willful violation of a clear mandate of the Legislature, as expressed through Article 1.13(c), can ever be characterized as "exemplary."

4. The precise ground we granted review on is whether "[t]he Court of Appeals erred in failing to find and hold that the trial court erred by failing to appoint an attorney to represent petitioner prior to his waiver of jury trial in a felony case. The trial court ignored the plain, clear, unambiguous and mandatory language of article 1.13(c) which requires the court to appoint an attorney to represent a defendant charged with a felony prior to his agreement to waive jury trial. Such error by the trial court renders the conviction void and petitioner may challenge a void conviction at any stage in the criminal proceedings." We did not grant review to redetermine what is cognizable on a writ of habeas corpus or to consider whether Seidel and Heath should be overruled.

5. Article 1.15 further provides that "[n]o person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14 ... ."

6. For a discussion of the history of Article 1.13 and it's predecessor Article 10a, see Ex parte Ross, 522 S.W.2d at 222-223.

7. But see Sanders v. United States, 373 U.S. 1, 89 S. Ct. 1068, 10 L.Ed.2d 148 (1963) ("Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.").