Leday v. State

McCORMICK, Presiding Judge,

dissenting.

I respectfully dissent. It is noteworthy the Court did not grant discretionary review in this case specifically for the purpose of reexamining the DeGarmo doctrine. 1 The Court granted discretionary review to decide whether this doctrine also applies when a defendant admits his guilt at guilt/innoeenee and later complains on appeal about errors occurring at guili/innocence. 2

Although in other recent cases several members of the Court have taken the position that the Court should exercise restraint and not decide claims not presented in a party’s discretionary review petition and that the Court should adhere to principles of stare decisis in cases like this — a position not taken by any members of the Court here, I nevertheless believe the Court does not abuse its discretionary authority to reexamine the DeGarmo doctrine. So this dissenting opinion also addresses the merits of the issue.

The Court’s thoughtful opinion, echoing some but not all of Judge Meyers’ dissenting opinion in McGlothlin v. State, apparently decides to abandon entirely the DeGarmo doctrine which means this guilty-admitting appellant may complain on appeal about the admission at guili/innocence of evidence which he claims was seized in violation of the Fourth Amendment. 3 Much of the Court’s opinion is based on federal constitutional law. 4 I would retain the DeGarmo doctrine *731 and also extend it to when a defendant makes a “solemn admission of guilt” in open court at guilVinnocence which means appellant may not complain on appeal about the admission of the evidence which he claims was seized in violation of the Fourth Amendment. I would do this under an alternative rationale than that relied upon in DeGarmo since the Court’s opinion amply demonstrates DeGarmo’& shaky decisional foundation even though its basic rule is sound.

The decision in this case requires delicately balancing the criminal justice system’s basic purpose of ascertaining the truth and the overriding truth-subverting values identified on pages 26 to 27 of the Court’s opinion. 5 See United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405, 3412 , 82 L.Ed.2d 677 (1984) (basic purpose of criminal justice system is truth-finding function). When a defendant admits his guilt in open court during trial, this Court should advance some very good reasons why this guilty-admitting defendant’s conviction should be reversed on appeal and why his admission of guilt arguably cannot later be used against him in the event of a retrial. See McGlothlin, 896 S.W.2d at 191 (Meyers, J., dissenting) (judicial confession is “significant event” in the criminal process because it amounts to an admission of guilt made before a neutral tribunal under circumstances where the defendant’s right to remain silent is scrupulously honored).

The truth-subverting values identified on pages 26 to 27 of the Court’s opinion are not ends in and of themselves. They do not exist for the sole purpose of subverting the search for the truth. They are means to the end of making a reliable and fair determination 6 of the truth oh the issue of a defendant’s guilt/innocence. See Herrera v. Collins, 506 U.S. 390 , 113 S.Ct. 853, 859-60 , 122 L.Ed.2d 203 (1993) and at 870 (O’Connor, J., concurring). Once the end of ascertaining the truth has been achieved by the significant event of a defendant’s voluntary admission of guilt in open court, the value of assuring this defendant a “fair trial” becomes less important. When a defendant has voluntarily admitted his guilt in open court, the criminal justice system’s basic purpose of ascertaining the truth outweighs or “renders irrelevant” the defendant’s interest in a “fair trial.” DeGar-mo does not subvert the value of insuring a defendant a “fair trial” because under De-Garmo a defendant still retains the option of choosing not to testify and insisting on his right to a “fair trial.”

However, the Court’s opinion says the truth-subverting values identified on pages 26 to 27 of its opinion override this search for the truth even when the defendant admits his guilt in open court because the defendant’s “decision to testify is not voluntary” making the jury’s guilty verdict still infected or tainted with reversible error as if the defendant had not testified at all. See Leday, 983 S.W.2d at 723 (defendant’s decision to testify is not “voluntary”). The Court’s opinion identifies the “cruel trilemma” in which the DeGarmo doctrine places a defendant and which the Court’s opinion says makes the defendant’s decision to testify involuntary. See id. (defendant can either testify truthfully and admit guilt or testify untruthfully and deny guilt or exercise right to remain silent); see also McGlothlin, 896 S.W.2d at 191 (Meyers, J., dissenting) (identifying difficult decisions a defendant must make).

That this “trilemma” may “tug at the heartstrings” does not make it “cruel.” Compare Brogan v. U.S., 522 U.S. 398 , 118 5.Ct. 805, 809-10, 139 L.Ed.2d 830 (1998) (rejecting defendant’s “cruel trilemma” argument in another context and declining to *732 ■write into the law a “species of compassion inflation”). Despite having had the opportunity to do so for almost fifteen years, the Supreme Court has never decided Texas’ DeGarmo doctrine violates the Constitution.

That DeGarmo might require a defendant to make some difficult choices does not render involuntary his decision to admit his guilt in open court. The Constitution does not always guarantee us freedom from making difficult choices. Compare Brogan, 118 S.Ct. at 810 . And, as in Brogan , one of the lemmas the Court’s opinion identifies as “cruel” is actually our Fifth Amendment right against compelled self-incrimination. See id. (defendant’s claim altered elements of “cruel trilemma” so that “right to remain silent, which was the liberation from the original trilemma, is now itself a cruelty”) (emphasis in original). This Fifth Amendment right cannot be considered cruel. See id.

DeGarmo’s essential observation that a defendant’s admission of guilt in open court is analogous to a voluntary guilty plea is correct and does not fail. See DeGarmo, 691 S.W.2d at 661 (defendant’s admission of guilt at trial is “equivalent of a plea of guilty”); but see Leday, 983 S.W.2d at 723 (DeGarmo’s analogy to “voluntary guilty plea” fails). 7 United States Supreme Court precedents are instructive on the legal effect of a defendant’s admission of guilt in open court and also are instructive on the “voluntary” nature of such an admission of guilt as well as to the Court’s “cruel trilemma” rationale. These precedents recognize that difficult choices or “cruel trilemmas” do not necessarily render admissions of guilt in open court involuntary, that defendants still have various options available to them to preserve their right to a “fair trial,” and that defendants cannot simultaneously admit their guilt and insist upon their right to a “fair trial.”

Federal constitutional law is consistent with DeGarmo. Federal constitutional law is a guilty plea — that is, an admission of guilt in open court — waives or “renders irrelevant” most complaints “relating to deprivation of constitutional rights” occurring before the plea or admission of guilt. See Tollett v. Henderson, 411 U.S. 258 , 93 S.Ct. 1602,1608 , 36 L.Ed.2d 235 (1973) (guilty plea represents break in the chain of events which has preceded it in the criminal process, and, when a defendant solemnly admits in open court that he is in fact guilty of the offense with which he is charged, he may not later raise independent claims relating to deprivation of constitutional rights that occurred prior to entry of plea; he may only attack the voluntary and intelligent character of the guilty plea by showing that advice he received from counsel was not within the standards set forth in [citation omitted]).

This holding in Tollett is based on the “principle recognized in the Brady trilogy” of cases decided in 1970. Tollett, 93 S.Ct. at 1608 ; see 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). 8 Contrary to the position taken in Judge Meyers’ concurring opinion in this case and in his dissenting opinion in McGlothlin, the overriding principle expressed in Tollett and in the “Brady trilogy” is that a defendant’s voluntary admission of guilt in open court “renders irrelevant” most constitutional deprivations occurring before this admission of guilt including whether the defendant has received a “fair trial.” See Menna v. New York, 423 U.S. 61 , 96 S.Ct. 241 , 242 fn. 2, 46 L.Ed.2d 195 (1975) (Tollett’s rule not so much based on “waiver” as it is on idea that voluntary admission of guilt “renders irrelevant” most constitutional deprivations occurring before the admission of guilt). 9

*733 And, in McMann the Court also held an admission of guilt in open court is not rendered involuntary on the ground that it was motivated by a coerced confession. See McMann, 90 S.Ct. at 1449 . 10 The Court in McMann rejected the rationale advanced by the Court today — the “trilemma” and the difficult choices in which DeGarmo’s rule places a defendant are “cruel” and render involuntary a defendant’s admission of guilt in open court.

“Since we are dealing with a defendant who deems his confession crucial to the State’s case against him and who would go to trial if he thought his chances of acquittal were good, his decision to plead guilty or not turns on whether he thinks the law will allow his confession to be used against him. For the defendant who considers his confession involuntary and hence unusable against him at trial, tendering a plea of guilty would seem a most improbable alternative. The sensible course would be to contest his guilt, prevail on his confession claim at trial, on appeal, or, if necessary, in a collateral proceeding, and win acquittal, however guilty he might be. The books are full of cases in New York and elsewhere, where the defendant has made this choice and has prevailed. If he nevertheless pleads guilty the plea can hardly be blamed on the confession which in his view was inadmissible evidence and no proper part of the State’s case. Since by hypothesis the evidence aside from the confession is weak and the defendant has no reasons of his own to plead, a guilty plea in such circumstances is nothing less than a refusal to present his federal claims to the state court in the first instance — a choice by the defendant to take the benefits, if any, of a plea of guilty and then to pursue his coerced-confession claim in collateral proceedings. Surely later allegations that the confession rendered his plea involuntary would appear incredible, and whether his plain bypass of state remedies was an intelligent act depends on whether he was so incompetently advised by counsel concerning the forum in which he should first present his federal claim that the Constitution will afford him another chance to plead.

A more credible explanation for a plea of guilty by a defendant who would go to trial except for his prior confession is his prediction that the law will permit his admissions to be used against him by the trier of fact. At least the probability of the State’s being permitted to use the confession as evidence is sufficient to convince him that the State’s case is too strong to contest and that a plea of guilty is the most advantageous course. Nothing in this train of events suggests that the defendant’s plea, as distinguished from his confession, is an involuntary act. His later petition for collateral relief asserting that a coerced [ 11 ] confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applicable law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable.

As we said in [Brady], the decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury *734 of the defendant’s guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.” McMann, 90 S.Ct. at 1447-48 . (Emphasis Supplied).

McMann and the other “Brady trilogy” support holding that a defendant’s decision to admit his guilt in open court is not tainted or rendered involuntary by some constitutional deprivation that may have occurred prior to or even motivated this decision. See McMann, 90 S.Ct. at 1448 (defendant’s guilty plea motivated by a coerced confession is not an involuntary act). It is not much of a stretch to say Tollett and McMann would have been decided the same way even had the defendants in those cases waited until trial to take the stand and admit their guilt in open court without the benefit of the admonishments associated with a pretrial formal plea of guilty. With respect to a defendant’s decision to admit his guilt in open court, the dynamics at work in both the Tollett and the DeGarmo situations are essentially the same. See McMann, 90 S.Ct. at 1447-48 , and at 1453-54 fn. 4 (Brennan, J., dissenting).

McMann also suggests a way out of De-Garmo’s “cruel trilemma” which is a defendant can preserve his right to a “fair trial” by deciding not to testify and pursue on appeal any claims alleging deprivations of constitutional rights. See McMann, 90 S.Ct. at 1447 . The “books are full of cases” where a “defendant has made this choice and has prevailed.” See id. 12

McMann and the other “Brady trilogy” do not permit a defendant both options of simultaneously admitting his guilt in open court and also insisting on a “fair trial.” The balance between the competing interests is properly and delicately struck by permitting the defendant one or the other of these options. However, the Court’s opinion improperly shifts this delicate balance decidedly in favor of criminal defendants and against the legitimate interests of law-abiding citizens by permitting a defendant to have his cake and eat it to, as it were.

The Court’s opinion allows a defendant to retain the benefits “if any” of his decision to take the stand and admit his guilt in open court. But see McMann, 90 S.Ct. at 1447 . If the defendant does not obtain any benefits from this decision, the Court’s opinion then permits him to pursue his claims alleging deprivations of constitutional rights. But see id. (defendant not permitted to take benefits “if any” of pleading guilty and then “pursue his coerced-confession claim”). And, under the Court’s opinion this defendant’s admission of guilt in open court arguably cannot later be used against him in the event of a retrial. 13

The Court’s opinion also claims a defendant’s decision to testify and admit his guilt in open court is not voluntary because there is no procedure, such as when a defendant formally pleads guilty to avoid a trial, “to require a court to advise a defendant who takes the stand at the punishment phase that *735 an admission of guilt will waive appellate consideration of errors at the guilt phase.” See Leday, 983 S.W.2d at 723. There is no legal rule and the Court’s opinion cites none that the absence of such an admonishment renders involuntary a defendant’s decision to testify and admit his guilt in open court. And contrary to what the Court’s opinion claims, I do not find it difficult to believe that defense counsel routinely advises a defendant of this hazard and that “the appellants in all [the DeGarmo cases cited in the Court’s opinion] knew in advance that their testimony would result in waivers on appeal.” But see Leday, 983 S.W.2d at 723.

In any event this rationale sweeps too broadly and is not a sufficient justification for overruling DeGarmo because it gives the benefit of the Court’s decision to defendants who actually “knew in advance that their testimony would result in waivers on appeal.” Moreover, the “Brady trilogy” suggests the proper remedy in this situation would be for a defendant to claim he was “incompetently advised by counsel.”

Another important and significant consideration to the decision in this case is that in Helms v. State this Court adopted what amounts to the holding in Tollett . See Helms v. State, 484 S.W.2d 925, 926-27 (Tex.Cr.App.1972) (guilty plea “waives” most non-jurisdictional defects occurring before entry of plea). This judicially created rule is commonly known as the “Helms rule.”

The Helms rule was not a judicially created rule for very long. In 1977 our Legislature effectively codified most of the Helms rule when, having the opportunity to abrogate this rule in its entirety, the Legislature made only a “limited abrogation” of this rule for negotiated guilty pleas under what is now Tex.R.App.Proc. 25.2(b)(3). See generally Lyon v. State, 872 S.W.2d 732, 734-35 (Tex.Cr.App.), cert. denied, 512 U.S. 1209 , 114 S.Ct. 2684 , 129 L.Ed.2d 816 (1994).

The Legislature’s “limited abrogation” of the Helms rule and the legislative history of Rule 25.2(b)(3) clearly indicate an intent that our Legislature generally approves of the Helms rule and does not want this Court to be reversing convictions of guilty-admitting defendants on account of errors occurring before these admissions of guilt. The Court’s decision is contrary to this clear legislative intent and it effectively overrules the Helms rule despite the Legislature’s approval of this rule. 14

The Court’s opinion also says appellant’s admission of guilt in open court does not “waive” any error in the admission of the evidence which appellant claims was illegally seized because appellant’s testimony was “impelled” by the admission of this evidence and because appellant “sought to meet, destroy, or explain it by introducing [his] rebutting” testimony. See Leday, 983 S.W.2d at 718-720 (“impelled” testimony “exception” should not be subjected to a doctrine that a party waives an error in the admission of evidence by rising to rebut the evidence). DeGarmo does not violate the United States Supreme Court’s “impelled testimony” jurisprudence announced in 1968 by Harrison v. United States, 392 U.S. 219 , 88 S.Ct. 2008 , 20 L.Ed.2d 1047 (1968).

Harrison was a Fifth Amendment “fruit of the poisonous tree” case. 15 In Harrison , the *736 Court decided the defendant’s apparently untruthful guilt-innocence testimony 16 from a former trial was inadmissible during the prosecution’s case-in-chief at the defendant’s subsequent trial because this testimony was the “fruit of the poisonous tree” of or was “impelled” by three illegally obtained but noncoerced confessions that were introduced at the defendant’s former trial. See Harrison, 88 S.Ct. at 2009-11 (defendant testified only after prosecution had illegally introduced into evidence three wrongfully obtained confessions and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony “impelled” thereby — “the fruit of the poisonous tree, to invoke a time-worn metaphor”). 17

Harrison and the other “exception” upon whieh the Court relies do not apply when a defendant, like appellant in this case, admits his guilt in open court to each element of the charged offense. In the “Brady trilogy” decided just two years after Harrison , the United States Supreme Court declined to extend Harrison to a defendant’s admission of guilt in open court despite the dissenters’ claims that Harrison controlled the disposition of those eases. See McMann, 90 S.Ct. at 1453 (Brennan, J., dissenting) (Harrison’s “reasoning” should apply; that is, “if the coerced confession induces a guilty plea, that plea, no less than the surrender of the self-incrimination privilege in Harrison , is the fruit of the State’s prior illegal conduct, and thus is vulnerable to attack”).

Justice Brennan’s dissent in McMann also pointed out that one of the dissenters in Harrison concluded that “ ‘[similarly, an inadmissible confession preceding a plea of guilty would taint the plea.’ ” See McMann, 90 S.Ct. at 1453 fn. 4 (Brennan, J., dissenting). However, the Court rejected this position in McMann . See id. Therefore, appellant’s admission of guilt in open court was not “impelled” by the admission of the evidence which appellant claims was illegally seized and later using this admission of guilt against appellant in the event of a retrial also would not violate Harrison . 18

The Court’s opinion also decides DeGarmo violates Article 38.23(a)’s policy that the jury “should decide the issues of fact about the legality of the State’s evidence.” See Leday, 983 S.W.2d at 719 (emphasis supplied). Article 38.23(a) expresses no such policy. Article 38.23(a) says the jury should decide these *737 issues only “where the legal evidence raises an issue” thereunder and the defendant properly requests the jury to decide the issue.

And this brings us to the crux of what appellant essentially argues in this case. His argument essentially boils down to he had to admit his guilt in open court in order to place the issue “about the legality of the State’s evidence” before the jury. He claims that under these circumstances it is unfair to hold him to his admission of guilt in open court because the Fourth Amendment violation motivated his decision to testify.

For the reasons already stated this does not render involuntary appellant’s decision to admit guilt in open court. In addition, appellant did not have to surrender altogether his Fourth Amendment claim in order to assert his Fifth Amendment right to remain silent at trial. See Nelson v. State, 765 S.W.2d 401, 403 (Tex.Cr.App.1989). A defendant may pretrial take the stand and testify for the “limited purpose” of preserving for appeal a Fourth Amendment claim with no danger that this testimony will be used against him at trial. See id 19 In any event, the whole point of Jackson v. Denno was that juries cannot be trusted to fairly decide these issues anyway. See Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774, 1777-91 , 12 L.Ed.2d 908 (1964) (New York state rule, that, if factual dispute existed as to voluntariness of a confession, trial court had to submit the issue to the jury, violated Fourteenth Amendment), and 84 S.Ct. at 1793-1805 (Black, J., dissenting) and at 1805-07 (Clark, J., dissenting) and at 1807-14 (Harlan, J., dissenting); State v. Ibarra, 953 S.W.2d 242, 252 (Tex.Cr.App.1997) (McCormick, P.J., dissenting).

To summarize, a defendant’s admission of guilt in open court should be treated like a guilty plea’s resulting “waiver” of most complaints relating to deprivation of constitutional rights occurring before the defendant’s admission of guilt. See Tollett, 93 S.Ct. at 1608 . The Court’s opinion decides a defendant’s admission of guilt in open court has no such effect because the defendant’s decision to testify is not “voluntary.” However, the defendant’s decision to testify though maybe a difficult one is nevertheless voluntary. See “Brady trilogy” of cases. The United States Supreme Court’s decision in Harrison and Article 38.23(a) are not to the contrary.

Finally, the Court’s opinion fails to deal with the issue of stare decisis which should be a significant consideration in this case. See generally Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex.Cr.App.1998) (discussing various factors to consider in deciding whether to overrule precedent). In overruling DeGarmo, the Court’s opinion does collateral damage such as upsetting the delicate balance struck by Rule 25.2(b)(3) and cases such as Helms which our Legislature generally has approved.

Moreover, DeGarmo’s basic rule produces consistent results and strikes a proper and delicate balance between the competing interests. It has not produced “unfair” results. It does not violate the federal constitution. Texas courts have applied it for approximately fifteen years with no legislative action taken to overrule it. To the contrary, legislative action in this area of the law indicates legislative approval of DeGarmo.

The Court’s decision will require appellate courts to address numerous claims the vast majority of which will have no merit. If a defendant’s admission of guilt in open court is to have any significance at all, the Court sooner or later will have to draw the line somewhere in other cases on what claims are “waived” and what claims are not “waived” by a defendant’s admission of guilt in open court. For example, does a defendant’s complaint about the admission of hearsay fall within the Court’s decision today? And, practically under the Court’s opinion today a defendant has little incentive to plead guilty before trial and little, if anything, to lose *738 from taking the stand during trial and either admitting his guilt or committing perjury. I believe the Court has decided to overrule precedent “lightly.” See Awadelkariem, 974 S.W.2d at 725 .

The Court’s opinion turns a defendant’s voluntary admission of guilt in open court into an insignificant event contrary to the criminal justice system’s basic purpose of ascertaining the truth. The rule announced in this case so improperly shifts the balance in favor of criminal defendants and against the legitimate interests of law-abiding citizens that I strongly urge the Legislature to abrogate or overturn it in its entirety.

I respectfully dissent.

KELLER, J., joins this dissent.

. This doctrine states that a defendant who admits his guilt at punishment "waives” any "error that might have occurred during the guilt stage of the trial.” DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Cr.App.), cert. denied, 474 U.S. 973 , 106 S.Ct. 337 , 88 L.Ed.2d 322 (1985).

. Tn this case, appellant also admitted his guilt at punishment so it is not even really necessary to decide the question upon which the Court granted discretionary review.

. In McGlothlin, this Court granted discretionary review for the specific purpose of reexamining DeGarmo . See McGlothlin v. State, 896 S.W.2d 183, 190 (Tex.Cr.App.) (Meyers, J., dissenting), cert. denied, 516 U.S. 882 , 116 S.Ct. 219 , 133 L.Ed.2d 150 (1995). Judge Meyers’ dissenting opinion in McGlothlin would have decided a defendant’s admission of guilt at guilt/innocence waives any appellate claim about the sufficiency of the evidence to support his conviction. See McGlothlin, 896 S.W.2d at 191 (Meyers, J., dissenting) (declining to hold evidence is insufficient to support conviction where defendant admits guilt before the factfinder before its verdict at guilt/innocence). The Court’s opinion in this case apparently would allow Judge Meyers’ hypothetical guilty-admitting defendant in McGlothlin to complain on appeal about the sufficiency of the evidence to support his conviction. See Leday v. State, 983 S.W.2d at 725, 726, (Tex.Cr.App.1998) (due process guarantees guilt must be proved beyond a reasonable doubt and ”[i]sofar as the DeGarmo doctrine estops a defendant from raising on appeal a violation of [this guarantee], it cannot be justified on the ground that the verdict of guilt was correct"). So there appears to be some conflict between the Court’s opinion in this case and Judge Meyers’ dissenting opinion in McGlothlin .

.This is not very clear from the Court’s opinion. However, I have concluded the Court’s decision rests mostly on federal constitutional law since it relies on various federal constitutional truth-subverting values identified on pages 26 to 27 of its opinion and on its determination that for DeGar-mo purposes a defendant’s decision to testify and admit his guilt in open court is not a “voluntary" decision. The Court’s opinion effectively decides DeGarmo violates the United States Constitution.

The Court’s opinion does claim DeGarmo negates the public policy expressed in Article 38.23(a), V.A.C.C.P. See Leday, 983 S.W.2d at 719. However, the public policy expressed in Article 38.23(a) is that a jury may decide fact issues on whether evidence has been "obtained in violation of the law.” DeGarmo does not prevent a jury from deciding these issues. A defendant can take the stand at guilt/innocence, admit his guilt in open court and still receive his Article 38.23(a) instruction when the evidence warrants it as appellant did in this case. So DeGarmo does not violate the public policy expressed in the "plain” language of Article 38.23(a).

The Court’s opinion also claims Article 38.23(a) incorporates the federal equivalent of the "impelled testimony” rule which is part of the "fruit of the poisonous tree doctrine." However, Article 38.23(a) by its very terms does not incorporate this "impelled testimony” rule. But see Leday, 983 S.W.2d at 718-719 (one exception to rule that erroneous admission of evidence is rendered harmless when defendant testifies to same facts is when a defendant’s testimony was “impelled by the State’s introduction of evidence *731 that was obtained in violation of the law”). Under the "plain” language of Article 38.23(a) this defendant’s testimony is not "obtained in violation of the law.”

. A clear example of an overriding truth-subverting value is the exclusion from evidence of a confession extracted from a defendant by torture. If this is all the evidence the prosecution has, the defendant walks free no matter how guilty he is or how truthful his confession is. The overriding truth-subverting value or policy advanced here is that our society does not tolerate the extraction of confessions by torture even to the point of allowing a clearly guilty defendant to walk free. An exception to this before the Court’s decision today was when the defendant admits his guilt in open court during trial.

. This usually is referred to as a "fair trial.” See McGlothlin, 896 S.W.2d at 191 (Meyers, J., dissenting).

.This is perhaps one reason why the United States Supreme Court has never decided Texas’ DeGarmo doctrine violates the federal constitution. Consistent with principles of federalism, Texas can decide as a matter of state law that a defendant's admission of guilt in open court is the "equivalent of a plea of guilty.” DeGarmo, 691 S.W.2d at 661 .

. These latter three cases comprise the "Brady trilogy.”

. After consulting Shepherd's citations to Tollett and the “Brady trilogy,” Tollett's general rule has some exceptions not applicable here. See, e.g., Menna, 96 S.Ct. at 242 fn. 2 (guilty plea might not “waive” double jeopardy claims; guilty plea "renders irrelevant" constitutional violations *733 "not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established”).

. In McMann , the court held a guilty plea is not subject to attack "on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney.” See McMann, 90 S.Ct. at 1449 . That counsel’s advice was "wrong” does not necessarily render the plea involuntary. See McMann, 90 S.Ct. at 1448 ; Parker, 90 S.Ct. at 1462 .

. Emphasis in Original.

. A defendant can also plead guilty pretrial without an agreement on punishment and preserve his opportunity "to give the sentence information that only the defendant can provide.” See Leday, 734 S.W.2d at 723.

. The Court’s opinion seems to create almost a per se rule that a defendant’s decision to admit his guilt in open court is rendered involuntary by claimed constitutional deprivations occurring before this admission of guilt. This raises the question of the effect of an appellate court later deciding these claimed constitutional violations are without merit. In these circumstances and under the Court’s decision, is not the defendant’s decision to admit his guilt in open court still “involuntary” possibly requiring a reversal of his conviction? Or, will this appellate decision somehow render "voluntary” the defendant’s decision to admit his guilt in open court? Will the "voluntariness” determination turn on the merits of the defendant’s claims alleging constitutional deprivations? And, what difference should the merits of these claims make to the "voluntariness” of the defendant’s decision to admit his guilt in open court?

. In addition, the main purpose of the legislative "limited abrogation” of the Helms rule was "to conserve judicial resources by encouraging guilty pleas” while also allowing defendants to appeal various issues without the necessity of a full-blown trial. See Lyon, 872 S.W.2d at 734-35 . The Court’s decision contravenes this purpose because it discourages pretrial guilty pleas and squanders judicial resources. The Court’s decision accomplishes this by putting defendants who wait until trial to admit their guilt in a better position than defendants who formally plead guilty before trial and during trial.

For example, the Court’s decision allows a defendant who waits until trial to admit his guilt to appeal issues that Helms , which the Legislature has approved, prohibits to a defendant who waits until trial to formally plead guilty without an agreed recommendation on punishment. Another example, the defendant who admits his guilt during trial does not have to get the trial court’s permission to appeal while the defendant who pleads guilty pretrial with an agreed recommendation on punishment has to get the trial court’s permission to appeal. Under the Court's decision, this latter defendant does not have much of an incentive to plead guilty pretrial. This contravenes the clear legislative intent upon which Rule 25.2(b)(3) is based.

. This case is a Fourth Amendment "fruit of the poisonous tree” case.

. Significantly the defendant’s testimony at guilt-innocence in Harrison was not an admission of guilt to the charged offense. See Harrison, 88 S.Ct. at 2009 .

. When a defendant admits his guilt at punishment after a jury has rendered its verdict, it cannot be said the defendant’s admission of guilt at punishment was "impelled” or "tainted” by the admission at guilt-innocence of other illegally obtained evidence. See Harrison, 88 S.Ct. at 2010-11 . In these circumstances, Harrison simply has no effect or application to this Court’s DeGarmo doctrine jurisprudence.

. Harrison also was expressly limited to a defendant’s testimony that was the “fruit” of illegally obtained confessions under the Fifth Amendment. See Harrison, 88 S.Ct. at 2010 -11 fn. 9. Therefore, Harrison does not apply when a defendant testifies at guilt-innocence to overcome the impact of the admission of evidence which the defendant claims was seized in violation of the Fourth Amendment.

It also would appear that not much of Harrison bas survived subsequent United States Supreme Court "fruit of the poisonous tree” decisions. For example, Harrison dealt with a defendant's testimony that was the “fruit” of noncoerced confessions. See Harrison, 88 S.Ct. at 2009 . However, the United States Supreme Court subsequently has decided that "fruits” of non-coerced confessions obtained in violation of "prophylactic” rules are admissible. See Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285, 1296 , 84 L.Ed.2d 222 (1985); Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357, 2368 , 41 L.Ed.2d 182 (1974); Baker v. State, 956 S.W.2d 19, 22-24 (Tex.Cr.App.1997).

Apparently Harrison now applies only to a defendant's testimony that is the "fruit” of a coerced confession that is obtained in actual violation of the Fifth Amendment by methods such as torture or other means that would cause an innocent person to confess. See Elstad, 105 S.Ct. at 1297 (if prosecution has actually violated a defendant’s Fifth Amendment rights by introducing an inadmissible coerced confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison precludes use of that testimony at retrial); Baker, 956 S.W.2d at 22 (fruits of defendant’s statement suppressed only when statement obtained through actual coercion). Any of this Court’s cases extending Harrison beyond this context gives Harrison a more generous reading than it deserves. See Leday, 983 S.W.2d at 718 (and cases cited therein). Today, the defendant in Harrison would lose.

. This is another rule which strikes a delicate balance between the competing interests. This rule obviously is intended to avoid placing a defendant in a position of having to choose between altogether abandoning a Fourth Amendment claim or abandoning his Fifth Amendment right to remain silent at trial. See Nelson, 765 S.W.2d at 403 . This rule permits a defendant both of these options. See id. The defendant is not required to take the stand and testify at trial for the purpose of preserving a Fourth Amendment claim.