                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                     No. 06-15-00170-CR



                                 GARY CARSON, Appellant

                                              V.

                              THE STATE OF TEXAS, Appellee



                           On Appeal from the 102nd District Court
                                   Bowie County, Texas
                               Trial Court No. 14F0102-102




                      Before Morriss, C.J., Burgess and Moseley,* JJ.
                    Memorandum Opinion on Remand by Justice Moseley




________________________

*Bailey C. Moseley, Justice, Retired, Sitting by Assignment
                                      MEMORANDUM ON REMAND

           Gary Carson was convicted on open guilty pleas in the 102nd Judicial District Court of

Bowie County, Texas, of three counts 1 of assault on public servants who were performing public

servant duties, 2 the penalties being enhanced by previous convictions, 3 and three counts of bail

jumping. 4 Carson v. State, 515 S.W.3d 372, 374 (Tex. App.—Texarkana 2017), rev’d, Nos. PD-

0205-17, PD-0206-17, PD-0207-17, PD-0208-17, 2018 WL 4472228, at *5 (Tex. Crim. App.

Sept. 19, 2018). Carson executed a written waiver of his right to appeal, and after a trial on

punishment, the trial court sentenced him to fifty years’ imprisonment in each of the assault cases

and ten years’ imprisonment in each of the bail jumping cases. 5 Id. This Court reversed and

remanded the case for a new trial on punishment, having found that Carson’s appellate waiver of

appeal was invalid and that fundamental error was committed at sentencing. Id. at 385–86. The

Texas Court of Criminal Appeals found that Carson’s waiver was valid, reversed our judgment,

and remanded the case to this Court for consideration of Carson’s heretofore unaddressed




1
 The charges were made through four separate indictments. Carson has filed a single brief raising the same issues in
all four cases. We reach the same result in the other three cases, released today in separate opinions numbered 06-15-
00171-CR, 06-15-00172-CR, and 06-15-00173-CR.
2
    TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2018).
3
    TEX. PENAL CODE ANN. § 12.425 (West Supp. 2018).
4
    TEX. PENAL CODE ANN. § 38.10 (West 2016).
5
 The assault charges were enhanced by two prior felony convictions, to which Carson pled true. The fifty-year
sentences were to run concurrently to each other, and the ten-year sentences were to run concurrently to each other,
but consecutively to the fifty-year sentences.


                                                          2
alternative argument that he may still appeal his conviction under the Young exception. 6 Carson,

2018 WL 4472228, at *5.

         Under what is known as the Helms rule, a nonnegotiated guilty plea that is voluntarily and

understandingly executed results in the implied waiver of all nonjurisdictional defects, including

deprivations of due process, occurring before the entry of the plea. Helms v. State, 484 S.W.2d

925, 927 (Tex. Crim. App. 1972). The Helms rule was later expanded to apply to jurisdictional

defects as well. Griffin v. State, 145 S.W.3d 645, 648–49 (Tex. Crim. App. 2004). However, in

Young v. State, the Texas Court of Criminal Appeals largely abrogated the Helms rule by holding

that a nonnegotiated guilty plea impliedly waived or forfeited the right to appeal a claim of error

only when the judgment of guilt was rendered independent of and not supported by the error.

Young v. State, 8 S.W.3d 656, 667 (Tex. Crim. App. 2000); see also Rankin v. State, 46 S.W.3d

899, 901–02 (Tex. Crim. App. 2001).

         Carson entered a nonnegotiated guilty plea and executed an explicit waiver of appeal, but

argues that he can appeal his conviction under the Young exception in spite of the waiver under

Helms. However, the Helms rule and the Young exception apply only to implied waiver. See

Rankin, 46 S.W.3d at 901–02; Young, 8 S.W.3d at 667. Here, Carson executed an explicit waiver

of appeal. Therefore, under the facts of this case, the Young exception does not apply to provide

Carson’s requested relief. Accordingly, we overrule this point of error.




6
 Because the underlying facts of the case have been discussed in detail in our prior opinion in this case, we address
only those facts relevant to the point of error presented on remand.
                                                         3
      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      October 25, 2018
Date Decided:        January 9, 2019

Do Not Publish




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