Ex parte Steven Jerald McCAIN, Appellant, 67 S.W.3d 204

OPINION COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, KEASLER, and HERVEY, JJ., joined. In this case, appellant argues that, because he was not appointed an attorney before he made his oral and written agreement to waive a jury trial, his voluntary guilty plea is void and therefore cognizable on a writ of habeas corpus. We conclude that the violation of a procedural statute, even a “mandatory” statute, is not cognizable on a writ of habeas corpus. Although

article 1.13(

c) of the Texas Code of Criminal Procedure states that the trial court “must” appoint an attorney to represent a felony defendant before he may waive a jury trial, this statutory provision does not embody a constitutional or fundamental right. Because habeas relief under

article 11.07 is available only for jurisdictional defects and violations of certain fundamental or constitutional rights, appellant’s claim is not cognizable on a writ of habeas corpus. Therefore, we affirm the Tenth Court of Appeals and uphold the trial court, both of which denied appellant habeas relief. McCain v. State, 24 S.W.3d 565 (Tex.App.Waco 2000). I. Appellant, a 17 year-old, was charged with the felony offense of indecency with a child by exposure. The victim was his niece, with whom he lived.

Appellant appeared in court pro se on June 11, 1999, and waived his rights to be charged by grand jury indictment, to representation by counsel, to trial by jury, and to confront and cross-examine witnesses. Appellant entered a plea of “no contest” and the trial judge sentenced him to six years in prison, probated for six years per his plea agreement with the State. Appellant did not appeal. On September 27, 1999, just two-and-a-half months later, the State filed a petition to revoke appellant’s probation. Appellant was arrested, jailed and appointed an attorney to represent him.

Before the trial court heard the motion to revoke probation, appellant filed an application for a writ of habeas corpus, seeking relief from his original plea. He contended that he was denied counsel in violation of

article 1.13(

c) and the Sixth Amendment to the United States Constitution. The trial court issued the writ and, after considering the pleadings and arguments of counsel, denied relief, finding that appellant’s waiver of his right to counsel and of his right to a jury trial were valid. Appellant appealed from that order, and the court of appeals affirmed, finding appellant’s complaint waived by the Helms rule. We deny appellant relief because his claim — the violation of a statute — is simply not cognizable on a writ of habeas corpus. II.

A writ of habeas corpus is available only for relief from jurisdictional defects and violations of constitutional or fundamental rights. A felony defendant clearly does have a constitutional right to have an attorney represent him. But a defendant who has intelligently and voluntarily waived that right to counsel does not have a separate constitutional right to the appointment of counsel before deciding whether to waive his right to a jury trial in a felony case. In what appellant notes is the most recent case from this Court to discuss the

article 1.13(

c) right to the appointment of an attorney before waiving the right to a jury trial, Retired Presiding Judge Onion stated: “We do not find, nor have we been cited any authority, which holds that the right to assistance of counsel prior to waiver of trial by jury in a criminal case is a fundamental right under due process of law.” Ex Parte [Jerry Lee] Ross, 522 S.W.2d 214, 223 (Tex.Crim.App.1975). Judge Onion noted that “[t]here exists no federal constitutional provision which prohibits an accused from knowingly and intelligently waiving his right to trial by jury in a felony prosecution.” Id. at 222.

Presiding Judge Onion was correct. He also stated, however, that “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.” Ross, 522 S.W.2d at 223. Why void?

The earliest case holding that a conviction obtained in violation of art. 10a is “void,” appears to be Ex parte Kelley, 161 Tex.Crim. 330, 277 S.W.2d 111, 112 (1955), in which this Court stated: It has been the repeated holding of this court that the provision touching representation by counsel is mandatory and that noncompliance therewith renders the conviction void. Wilson v. State, Tex. Cr.App., 157 Tex. Cr. R. 642, 252 S.W.2d 197 [1952]; Hernandez v.

State, 138 Tex.Cr.R. 4, 133 S.W.2d 584 [1939]; Ex parte Rawlins, 158 Tex.Cr.R. [346], 255 S.W.2d 877 [1953], None of these three prior cases said that the conviction of a defendant who was not represented by counsel at the time he waived his right to a jury trial was “void.” All three did say that

article 10a was a “mandatory” provision and that it was error to not follow its provisions. But that is true of the failure to follow almost any mandatory statute. In Kelley, this Court did not discuss the use of the word “void.” That term simply popped into the opinion, like Athena springing full-grown from Zeus’ brow. There is no logical or legal explanation for it. Nor does the term “void” fit the situation.

Why would the voluntary waiver of a jury trial by a defendant who, though not represented, was otherwise fully informed of his rights and wished to waive them, automatically render his conviction void and without legal consequence? If the constitution does not require this procedure and the Legislature could eliminate the statute entirely, why would this Court conclude that a conviction is “illegal” and has no legal force whatsoever simply because of the failure to provide counsel to make that one decision?

Under this “void conviction” reasoning, it matters not that the defendant forthrightly states that he wanted to waive his right to a jury trial then, and he wants to waive it now. Appellant’s position is simply that, because the statute says he “must” have an attorney represent him before he waives a jury trial, his conviction is void. He neither alleges nor offers any evidence that he would have acted differently had the trial court appointed him an attorney to advise him whether or not to waive a jury trial.

It appears that the first case to hold that a violation of art. 10a [now 1.13] is cognizable on a habeas writ was Ex parte Rawlins, which relied upon Hernandez, a direct appeal case. But Hernandez did not say that the resulting conviction was “void,” merely that the statute “seemed” mandatory. This Court, in Ex parte Rawlins, did not discuss why the defendant could obtain relief on a writ of habeas corpus, as opposed to reversal on direct appeal, for a procedural error.

If Rawlins stands for the proposition that any and all violations of a “mandatory” statute (i.e., one that contains the words “shall” or “must”) are cognizable on habeas review, it has long since been overruled sub silentio because this Court has repeatedly held that procedural errors or irregularities or deviations from “mandatory” statutes are not cognizable on a writ of habeas corpus.

In recent years, this Court has attempted to refine the definition of a “void” v. “voidable” conviction because those terms have caused so much confusion in Texas criminal law. “Void” convictions should be defined 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. See, e.g., Ex parte Seidel, 39 S.W.3d 221, 226-27 (Tex.Crim.App.2001) (Womack, J., dissenting, joined by Keller, P.J. & Meyers, J.).

Procedural errors or statutory violations may be reversible error on direct appeal, but they are not “fundamental” or “constitutional” errors which require relief on a writ of habeas corpus. We should clearly define the scope of issues and claims that are cognizable on a writ of habeas corpus as those which raise either jurisdictional defects or constitutional claims.

Even if the trial judge were to violate a “mandatory” statute by accepting the defendant’s waiver of a jury trial without first appointing an attorney to represent him for purposes of that one decision, that violation would not suffice to invoke habeas relief. After all, most provisions in the Code of Criminal Procedure are “mandatory,” in that they state that a trial court “shall” or “must” do something in a particular manner. To say that a statute is “mandatory” is simply to say that the law prescribes the manner in which a particular action should or shall be taken. For example, although other portions of

article 1.13 are also written in mandatory terms, a violation of those provisions would not be cognizable on a writ of habeas corpus because it would not be a jurisdictional defect or constitutional or fundamental violation. It would be a procedural violation. In Ex parte Sadberi"y, 864 S.W.2d 541, 543 (Tex.Crim.App.1993), this Court, in an 8-1 decision, held that a violation of the mandatory requirement in

article 1.13 that a defendant sign a jury waiver was not cognizable on a writ of habeas corpus. In Sadberry, this Court relied upon numerous prior cases which had held that habeas relief is available only for instances in which “the trial court’s judgment is void, and cannot be invoked for mere irregularities in the proceedings below.” Id. at 542. Unfortunately, the Court used the dreaded word “void” again. However, the cases this Court relied upon correctly stated the circumstances under which habeas relief is available, namely, to review jurisdictional defects or denials of fundamental or constitutional rights.

As the Court explained: While we do not sanction noncompliance with procedural rules designed to safeguard constitutional rights, the writ was not intended to provide for relief for such noncompliance where the record is otherwise clear on the rights to which the procedural formalities pertain.

Accordingly, we hold that where the applicant does not claim he desired and was deprived of his constitutional right to a trial by jury, that he did not intend to waive a jury trial or that he was otherwise harmed, and the record reflects that the applicant agreed to the waiver, we will not set aside a conviction by habeas corpus or collateral attack due to the applicant’s failure to sign a written jury form pursuant to

article 1.13. Id. at 543. The reasoning and result in Sadberry are sound. We will continue to follow it. Therefore, we ineluctably conclude that a violation of

article 1.13(

e) is not cognizable on a writ of habeas corpus. Therefore, we affirm the decision of the Court of Appeals. HOLCOMB, J., filed a dissenting opinion, in which PRICE and JOHNSON, JJ., joined. . We granted appellant's sole ground for review to address the following argument: The 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 pri- or 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. .

Article 1.13(

c) of the Code of Criminal Procedure provides as follows: 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. .The able trial judge questioned appellant extensively on the record to assure himself that appellant was fully aware of and appreciated each and every right he was waiving. The appellant also signed all appropriate written waivers.

When appellant told the court that he was 17 and had a tenth grade education, the trial judge asked whether appellant had any prior experience with attorneys. Appellant replied that, as a juvenile, he did have such experience. Nonetheless, the trial judge repeated and further explained each of appellant's constitutional rights.

The Tenth Court of Appeals concluded that the record of the trial court's inquiry into appellant’s desire to waive his constitutional rights and enter a plea of guilty was "exemplary.” Furthermore, there is nothing in this record to show that appellant was "hurried” to enter a plea by either the judge or prosecutor or that the judge "willfully” violated

article 1.13(c). . Appellant did not offer any evidence at his habeas hearing. Thus, the record provides insufficient proof to support appellant’s factual allegation that his plea was involuntary and unintelligent under the Sixth Amendment. We must, therefore, deny those claims because appellant has failed to offer any factual evidence other than the conclusory statement that a 17 year-old with a tenth grade education cannot, as a matter of law, voluntarily and intelligently waive his constitutional rights by himself. . Helms v. State, 484 S.W.2d 925 (Tex.Crim. App.1972).

In Helms, this Court held that "[w]here a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects including claimed deprivation of federal due process are waived.” Id. at 927. The Helms rule was recently modified in Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App.2000), to the extent that a defendant’s right to challenge errors occurring before his guilty or nolo contendere plea are waived "only when the judgment of guilt was rendered independent of, and is not supported by, the error.” 8 S.W.3d at 666-67.

Strictly speaking, the Helms/Young waiver rule applies to direct appeals and is not necessarily applicable to otherwise cognizable claims on a writ of habeas corpus. . For example, claims that the trial court never had personal jurisdiction over the defendant or subject matter jurisdiction over the offense raise jurisdictional defects and so are cognizable on a writ of habeas corpus. See, e.g., Garcia v.

Dial, 596 S.W.2d 524, 527 (Tex.Crim.App.1980) (because subject matter jurisdiction "exists by reason of the authority vested in the court by the Constitution and statutes[,]” it cannot be conferred by agreement or waiver). . See, e.g., Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App.1994) (habeas corpus is reserved for those instances in which there is a jurisdictional defect in the trial court which renders the judgment void or for denials of fundamental or constitutional rights); Ex parte Watson, 601 S.W.2d 350, 352 (Tex.Crim.

App.1980) (post-conviction writ of habeas corpus is limited, and "lies only to review jurisdictional defects or denials of fundamental or constitutional rights”); Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Crim.App.1989) (same). Although these cases frequently speak of "fundamental” rights being recognized on habeas review, they do not identify which rights, if any, are "fundamental” and yet not constitutional. . The issue in Ross was whether a misdemeanor defendant must be appointed an attorney before waiving his right to a jury trial.

This Court concluded that there was no such statutory right under art. 1.13(c), and de-dined to read one into the statute because there was no “fundamental” or "constitutional” requirement that a defendant be represented by counsel prior to waiving his right to a jury trial. 522 S.W.2d at 222-23. This Court also noted that Texas appears to be unique in its position that a felony defendant must be represented by counsel before he makes the decision to waive a trial by jury. Id. at 222. .

Judge Onion relied upon the following ha-beas cases: Ex parte Jenkins, 433 S.W.2d 701 (Tex.Crim.App. 1968) (holding that art. 1.13 "is mandatory and failure to comply renders the conviction void”); Ex parte Strother, 395 S.W.2d 629, 630 (Tex.Crim.App. 1965) (stating that “[ijt is well settled that the provisions of

Article 10a [now 1.13] are mandatory, and failure of the trial court to appoint counsel for petitioner prior to accepting his waiver for trial by jury would be reversible error”); Ex parte Prestridge, 373 S.W.2d 494, 495 (Tex. Crim.App.1963) (stating that "[t]he judgment of conviction is attacked as void because of the failure of the trial court to appoint counsel to represent him upon the trial of the case[,]” and holding that "Art. 10a, Vernon's C.C.P. [now art. 1.13(c)] provides that before a defendant who has no attorney can agree to waive a jury, the court must appoint an attorney to represent him.

This provision is mandatory.”); Ex parte [William FJ Ross, 165 Tex.Crim. 246, 305 S.W.2d 958, 959 (1957) (holding that Art. 10a “is mandatory and noncompliance therewith renders the conviction void”); Ex parte Rawlins, 158 Tex.Crim. 346, 255 S.W.2d 877 (1953) (same); Ex parte Burns, 441 S.W.2d 532, 533 (Tex.Crim.App.1969) (same); and Ex parte Higginbotham, 382 S.W.2d 927, 928 (Tex.Crim.App. 1964)(holding that "Art. 10a ... provides that before a defendant who has no attorney can agree to waive a jury the court must appoint an attorney to represent him.

This provision is mandatory and applies whether the defendant is indigent or not. Failure to comply renders the conviction void”). . Appellant states in his Petition for Discretionary Review that "the Legislature has enacted a check against the State’s power to influence and possibly coerce a plea from a criminal defendant who may be indigent and uneducated about the protection an attorney may afford him.” But appellant does not allege or offer evidence that he was so influenced or coerced into entering a plea of guilty.

His cognizable habeas corpus claim would be that his plea of guilty was not intelligent and/or voluntary because he did not knowingly or voluntarily waive his right to assistance of counsel or that he was unconstitutionally coerced by the State or trial judge into accepting a plea agreement without assistance of counsel. Appellant properly made a claim of an involuntary/unintelligent plea but failed to offer evidence at the habeas hearing to support it.

Without any allegation or evidence of actual harm, this Court cannot grant habeas relief on an abstract proposition of law. . 255 S.W.2d at 878 (stating that “Article 10a, Vernon’s C.C.P., provides that before a defendant who has no attorney can agree to waive a jury, the court must appoint an attorney to represent him. The provision is mandatory.”). . Hernandez v. State, 133 S.W.2d at 584. . Id. .

See, e.g., Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App.1993) (violations of mandatory provision concerning signing of written jury waiver contained in art. 1.13 not cognizable on writ of habeas corpus); Ex parte Tovar, 901 S.W.2d 484, 485 (Tex.Crim. App.1995) (failure to give mandatory admonishments regarding deportation required under Art. 26.13(a)(4) is cognizable on writ of habeas corpus only if trial judge wholly failed to give warnings and defendant’s plea was constitutionally involuntary as a consequence). . See also Nix v.

State, 65 S.W.3d 664, 673, (Tex.Crim.App.2001) (discussing “void” judgments and categorizing them in a “nearly exclusive” list as: “(1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument thus the trial court has no jurisdiction over the defendant; (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law; (3) the record reflects that there is no evidence to support the conviction; or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v.

Wainwright") (footnotes omitted). . See Ex parte Seidel, 39 S.W.3d at 225 (majority op.) (stating that “errors involving the violation of statutory procedure have not been deemed void, but voidable”; holding that when a court acts "outside the parameters of any rule or procedure”, it lacks authority to act). As the majority of this Court explained in Seidel, if a court violates a procedural statute, it has committed an error which may render a conviction based upon that error subject to reversal on direct appeal. In this Court’s hoary term, it is a "voidable” conviction. Id.

A court which has both subject matter and personal jurisdiction over a given case or controversy, but which performs an action outside of any legal or judicial authority, acts beyond the scope of the law and that ultra vires act cannot be recognized as a valid judicial act. The law will not validate its existence or performance. It is, in hoary terms, a "void” act. Id. .

Article 1.13(

a) states in pertinent part that a defendant may waive the right to a jury trial "conditioned, however, that such waiver must be made in person by the defendant in writing.”