Ex Parte Hogan

¶1concurring in part and dissenting in part.

¶2I concur in the result reached, but I dissent to the overruling of Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr.App.1976), to the extent of any conflict. There is no need for this overruling as this case and Dickey are not in conflict.

¶3In the instant case the petitioner filed a written notice of appeal within ten days after sentence had been pronounced although there had been an earlier waiver of appeal after sentence. The handwritten instrument merely gave notice of appeal and made no other request. The trial court denied permission to withdraw the waiver and then construed the notice of appeal as a post-conviction application for writ of habe-as corpus as asserting his waiver of appeal was not voluntarily entered. This was a gratuitous construction for there was no assertion that petitioner was denied his right of appeal or that his waiver of appeal was not voluntarily entered. The court then forwarded certain selected portions of the record, including the oral and written waivers of appeal made after sentence.

¶4*354In Ex parte Dickey, supra, the defendant also filed a written notice of appeal within ten days after sentence. The trial court denied such notice of appeal, finding Dickey had earlier made a knowing and intelligent waiver of appeal. The trial court took no further action in connection therewith. Subsequently, Dickey, unlike the instant case, filed a pro se post-conviction application for writ of habeas corpus seeking to appeal his burglary conviction. The court did not conduct an evidentiary hearing, but made findings of facts and conclusions of law and denied relief.

¶5The record which reached this court in Dickey showed Dickey had waived his right of appeal prior to trial and during trial confirmed the waiver he made in writing. A supplemental record was later filed showing Dickey had answered “Yes Sir” to the court’s inquiry after sentence if he wanted to waive his right of appeal. This court held that the waiver prior to trial or the confirmation of such waiver during trial was premature and not binding on Dickey,1and that evidence of waiver after sentence was meager and, without more, made it difficult to determine if the waiver after sentence was knowingly and intelligently made for Dickey may well have thought he had no choice in the matter in light of the earlier invalid waivers. The cause was remanded for an evidentiary hearing to determine if the waiver of appeal made after sentence was knowingly and intelligently made. Following remand it was determined that the waiver after sentence was knowingly and intelligently made.

¶6Thus, Dickey and the instant case are clearly distinguishable and are not in conflict. Dickey, which has been frequently cited by this court, need not be overruled even if the overruling is limited to the extent of any conflict which is not explained. What holding of Dickey in the majority opinion is to be overruled? If it be something attributed to the majority opinion by the opinion concurring in part and dissenting in part, then this should be made plain for the bench and bar. It may be that the overruling is directed to the conclusion in the opinion concurring in part and dissenting in part that the allegations in Dickey’s habeas corpus petition were insufficient. If this be so, then it should be remembered that while Dickey’s pro se habe-as corpus petition may not have been drawn with lawyer-like precision or form book accuracy, when its allegations were considered in light of the record of invalid premature waivers of appeal, etc., the question of whether the waiver after sentence was voluntary, knowingly and intelligently made was clearly raised.

¶7For the reasons stated, I concur in the result reached, but I would not overrule Dickey.