# Williams v. State > Court of Criminal Appeals of Texas · April 30, 1975 · 522 S.W.2d 488 URL: https://www.frixlaw.com/law-library/cases/9775598 ## Case - **Full name:** John WILLIAMS, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** April 30, 1975 - **Citations:** 522 S.W.2d 488; 1975 Tex. Crim. App. LEXIS 937 - **Precedential status:** Published - **Opinion:** Dissent by Roberts - **Judges:** Odom, Douglas, Roberts, Onion - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9775598 ## Opinion text ROBERTS, Judge (dissenting). The majority, through an adroit process of detached logic, have successfully circumvented the troublesome requirements of Art. 26.13, V.A.C.C.P. See my dissenting opinion in Tellez v. State, Tex.Cr.App., 522 S.W.2d 500 (delivered April 30, 1975). However, in their haste to rid our jurisprudence of the necessity of the trial judge determining the voluntariness of a guilty plea, they have completely abrogated the legislative mandate of Art. 40.09(13), V. A.C.C.P., that this Court review any unassigned error which should be reviewed in the “interest of justice.” It is the holding of the majority that unless complaint is made in the trial court to the failure of the judge to fully comply with the requirements of Art. 26.13, supra, then this Court will not consider the matter in the “interest of justice.” While I have dissented to the majority’s judicial amendment of Art. 26.13 in Tellez v. State, supra, I am constrained also to dissent to their further actions today. The majority have astutely relied upon the use of a syllogism to reach their onerous conclusion. They maintain that until recently this Court reasoned : Primary premise: Failure to comply with Art. 26.13, V.A.C.C.P., is fundamental error. Secondary premise: This Court will review fundamental error in the “interest of justice.” Art. 40.09(13), V.A.C.C.P. Conclusion: This Court will review defective Art. 26.13 cases in the “interest of justice.” *493 With the advent of Ex Parte Taylor, Tex. Cr.App., 522 S.W.2d 479 (original opinion delivered Feb. 5, 1975), the majority now reason: Primary premise: Failure to comply with Art. 26.13 is no longer fundamental error. Secondary premise: This Court will review fundamental error in the “interest of justice.” Conclusion: This Court will no longer review defective Art. 26.13 cases in the “interest of justice.” From an initial perusal of the preceding syllogism, this appears to be logically sound. However, a closer scrutiny reveals that the majority have made a fallacious assumption in the second level of their reasoning, i. e., “This Court will review fundamental error in the ‘interest of justice.’ ” While this is a correct pronouncement of the law, it is assumed that this Court will review only fundamental error under Art. 40.09(13), supra. This has not been nor should it be the law. Unassigned error which has been reviewed in the “interest of justice” by this Court has never been limited exclusively to fundamental error. E. g., West v. State, 514 S.W.2d 433 (Tex.Cr.App.1974) obscenity as a matter of constitutional law; Nichols v. State, 511 S.W.2d 269 (Tex.Cr.App.1974) late filed briefs; Butler v. State, 506 S.W.2d 902 (Tex.Cr.App.1974) review of record without statement of facts; Lee v. State, 505 S.W.2d 816 (Tex.Cr.App.1974) double jeopardy; Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973) carving; Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973) ineffective assistance of counsel; Hartman v. State, 496 S.W.2d 582 (Tex.Cr.App.1973) pro se brief of appellant; Walthall v. State, 488 S.W.2d 453 (Tex.Cr.App.1972) legality of search; Dorsey v. State, 485 S.W.2d 569 (Tex.Cr.App.1972) voluntariness of confession; Sanders v. State, 482 S.W.2d 208 (Tex.Cr.App.1972) failure to produce film in evidence in obscenity case. While these are but a few examples, it is abundantly clear that unassigned error need not be fundamental in order to be reviewed by this Court under Art. 40.09(13), supra. Admittedly, most of what is considered in the “interest of justice” is of a constitutional dimension; however, it is well established that due process forbids convicting a defendant on the basis of a coerced guilty plea. Pennsylvania v. Claudy, 350 U.S. 116 , 76 S.Ct. 223 , 100 L.Ed. 126 (1956); cf. Jackson v. U. S., 390 U.S. 570 , 88 S.Ct. 1209 , 20 L.Ed.2d 138 (1968). I cannot subscribe to the holding of the majority which would review only fundamental error in the “interest of justice.” The effect of the holding today is to categorically deny review of Art. 26.13 cases in the “interest of justice.” Such a conclusion is ludicrous in itself. Although procedural rules are a necessity, the blessings of efficiency cannot outweigh the afflictions of justice, especially where such constitutional rights are at stake. The overbroad rule announced by the majority is contrary to our entire concept of justice. Art. 44.23, V.A.C.C.P., provides: “The Court of Criminal Appeals shall hear and determine appeals in criminal actions at the earliest time it may be done, with due regard to the rights of parties and proper administration of justice, and no affirmance or reversal of a case shall be determined on mere technicalities or on technical errors in the preparation and filing of the record on appeal.” (Emphasis added) The import of this Article, when read in conjunction with Art. 40.09(13), supra, is clearly that this Court should, above all else, strive to insure that justice is the end result of a criminal prosecution and that the defendant is afforded a fair trial under law. As noted previously, it is a constitutionally protected right that a guilty plea be voluntarily entered. Accordingly, the Legislature has placed the affirmative duty on the trial judge to conduct an impartial and independent determination of the voluntariness of the guilty plea. Art. 26.13, supra. The holding of the majority would trans *494 pose this duty to appellant’s counsel to make complaint at trial. This can be readily seen by their conclusion that if no objection is made at the trial court level to the judge’s failure to fully comply with the statute, nothing is presented for review. By relying on the adversary system, the majority have alleviated the duty placed on the trial judge by the Legislature to make this determination. This is directly contrary to the legislative intent of Art. 26.13, supra. To adhere to the rule announced by the majority would be to ignore the mandates of Art. 26.13, supra; Art. 40.09(13), supra; and Art. 44.23, supra. I cannot sit idly by and watch a defendant be unwittingly stripped of his constitutional rights by his attorney’s failure to object when the Legislature of this State has specifically provided for the trial judge to make this determination sua sponte before accepting the plea. I would continue to review such matters in the “interest of justice” even though it is not fundamental error. For the foregoing reasons, I dissent. See the dissenting opinion in Ex Parte Taylor, Tex.Cr.App, 522 S.W.2d 479 (No. 49,443, delivered April 30, 1975). ONION, P. J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775598. Public record. Not legal advice.