Rule That Waives Plea Errors Canned

Susan Borreson
Texas Lawyer
January 20, 2000 

Defendants who enter pleas without an agreement got a windfall from the Texas Court of Criminal Appeals, which gutted a longstanding rule that waived the right to appeal most error in such cases.

In Young v. State, the court in a 6-3 decision on Jan. 5 rejected the Helms Rule, named for its 1972 ruling in Helms v. State, which held that a knowing and voluntary guilty plea waived all nonjurisdictional error on appeal. 

"The Helms doctrine is as dead as Miles Davis," says Houston criminal-defense lawyer Brian Wice, who argued the appeal for defendant Shermain Nadine Young.

The rule meant that a defendant who wanted to appeal the denial of a pretrial motion to suppress evidence, or a motion to quash, for instance, had to take the case to trial to preserve error. If the defendant pleaded guilty, the right to appeal was waived.

The Legislature in 1977 limited the Helms Rule only to pleas of guilt -- guilty and no contest -- that are entered without a punishment recommendation agreed upon by the defense lawyer and prosecutor.

Unagreed pleas are the minority of plea-bargained cases, but criminal-defense lawyers say the ruling is important because it levels the playing field for defendants who don't get reasonable offers from prosecutors but want to preserve the right to appeal without going to trial.

"I don't think you need to be Ken Starr to realize that nobody benefits at the end of the day by using resources and manpower to try cases only so that an issue can be preserved for appeal," Wice says.

Many criminal-defense lawyers' ignorance of Helms compounded the problem, allowing their clients to plead guilty without a plea bargain and not realizing they were waiving error, say Wice and Michael Heiskell, of Fort Worth's Johnson, Vaughn & Heiskell, president of the Texas Criminal Defense Lawyers Association. 

"It's sad to say, but we have many lawyers, both prosecution and defense counsel, who are basically lazy, and they don't conduct the necessary factual and legal research for their client," Heiskell says.

ROCK AND A HARD PLACE In Young's case, the prosecutor recommended a 40-year prison term after the judge denied Young's motion to suppress the cocaine seized in a search, says Houston lawyer James R. Walker, who also represents Young on appeal.

Young's lawyer rejected the offer, but didn't want to take the case to trial, either, Walker says. Young pleaded guilty to a drug charge without an agreed punishment and the judge sentenced her to 10 years in prison. She appealed the denial of the motion to suppress.

"I think it's pretty important, because you've had a class of people exactly like Ms. Young who were caught between a rock and a hard place," Walker says of the high court's ruling.

Walker argued on appeal that the doctrine was unconstitutional but was poured out by the 9th Court of Appeals in Beaumont, which called his request to overrule Helms "brazen." Walker says the Court of Criminal Appeals then denied his petition for review but a few days later on its own motion granted review on whether it should reconsider Helms. 

In the majority opinion reversing and remanding the case, Judge Paul Womack wrote that the Helms Rule is unsupported by its precedents, and is at odds with public policy goals to increase efficiency and decrease costs.

Presiding Judge Michael McCormick dissented, joined by Judges Stephen Mansfield and Sharon Keller. McCormick countered that the Legislature has had many chances since 1977 to change Helms but has not.

Some defense lawyers and prosecutors say the ruling will probably not greatly increase the number of non-negotiated plea bargains or affect daily practice much. 

"I'm just pleased with the recognition that this avenue of appeal should be available to all defendants," Heiskell says.

Some prosecutors say the ruling might even help. Why? Because some appellate courts already routinely remand cases that raise Helms issues to determine whether the plea was voluntary if the defendant claims ignorance of the Helms consequences of an unagreed guilty plea.

Bill Delmore, chief of the appellate division of the Harris County District Attorney's Office, says about five cases that raise Helms are remanded by the Houston appellate courts each year, causing further delays.

"Basically, all the Helms Rule has ever done for me, as a prosecutor, is result in a bunch of pleas being overturned as involuntary, and all that accomplishes is it returns the whole thing to square one," Delmore says. Delmore says he once even asked an appeals court to waive application of the Helms rule to expedite the appeal, but the court refused. "With that in mind, I really am not going to particularly mourn the passing of the Helms Rule," Delmore says.

However, not all appellate courts have taken that approach. Chuck Mallin, chief of the appellate division of the Tarrant County DA's office, says the ruling will mean more expense for the county and more work for his prosecutors, who will now have to brief the merits of appeals in non-negotiated pleas rather than just citing Helms and getting an automatic dismissal. 

"It's a pain. That's all it is. It's not a disaster," Mallin says.

Michael Little, district attorney of Liberty and Chambers counties, whose office prosecuted Young, did not return three phone messages.

State Prosecuting Attorney Matthew Paul, whose colleague, Betty Marshall, argued the case for the state, says his office will not appeal because it would be futile. The court took more than two years to decide Young.

Paul says the court did not completely reject the Helms Rule. Womack wrote that a guilty or no contest plea still waives the right to appeal when the judgment was rendered independent of, and is not supported by, the error.

But some lawyers, including Paul, are having trouble figuring out an example of an error that would fit that description. 

Says Paul, "What kind of errors are independent of the judgment is something that since the opinion came out, we've been talking about, and trying to nail down, and nobody I've talked to is quite sure what that means."

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