holding that absent fundamental error, one who fails to appeal when placed on probation waives his right to review
How later courts described this case
- holding that absent fundamental error, one who fails to appeal when placed on probation waives his right to review
- holding that one who fails to appeal when placed on probation waives his right to review
Written by the judges who cited it.
The opinion
ROBERTS, Judge
(dissenting).
I must dissent from that portion of the majority opinion which seeks to overrule the case of Ex parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1974), an opinion handed down by a unanimous Court.
The question presented in Ex parte Roberts, supra, is not before the Court in the instant case which involves an appeal from a revocation of probation. No such appeal was taken in Ex parte Roberts, supra.
Ex parte Roberts did not involve a situation in which an objection at the time would have been unavailable because the cases creating the ground of objection had not been decided. Compare Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972). It was not a situation in which a statutory condition precedent to the validity of some action had been created by the Legislature. Compare Ex parte Chavez, 482 S.W.2d 175 (Tex.Cr.App.1972).
Ex parte Roberts, supra, did involve a situation in which a glaring defect in the State’s pleading was not only waived at trial but was twice waived on opportunity for appeal. It was a situation in which the accused pled guilty, never urged any contention that his plea was involuntary or that any of his substantial rights were violated, and never contended that his plea *543 was made without adequate notice. It was, in short, a situation in which there was no showing of injury and in which almost everything possible had been done to waive the error.
I am convinced that the decision in Ex parte Roberts, supra, was correct, and that the majority goes to unnecessary lengths in order to overrule it. I dissent.
MORRISON, J., joins in this dissent.