Dodds v. StateDodds v. State
- Reporters:
- , ,
- Before:
- Chapa
OPINION
CHAPA, Justice.Appellant Gary Richard Dodds, appeals a conviction for the misdemeanor offense of possession of marijuana, two ounces or less. The court assessed a punishment of 20 days in jail. After appellant’s motion to suppress was denied, he plead guilty to the offense.
The critical issue before this cоurt is whether the appellant has waived his right to appeal the trial court’s denial of his motion to supрress under these circumstances. TEX.R.APP.P. 90. We hold that appellant has, but because appellant’s plеa was involuntary, we reverse the judgment.
An appellant has the burden of presenting to this court a recоrd that establishes the error complained of, and this court is bound by the record before it. Hale v. State, 509 S.W.2d 637, 637 (Tex. Crim.App.1974).
When a defendаnt enters a plea of guilty in a misdemeanor case, he admits every element of the offense; the court may assess punishment with or without evidence, and thus, there can be no ques*212tion of the sufficiency of evidence. Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim.App.1986).
In Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972), the Texas Court of Criminal Appeals established the general rule that a plea of guilty or nolo contendere waives аll nonjurisdictional errors. However, the Helms rule does not apply under the provisions of rule 40(b)(1) of the Texas Rules of Appellate Procedure, which replaced repealed article 44.02 of the Texas Code of Criminal Procedure, if the plea was entered pursuant to article 1.15 of the Texas Code of Criminal Procedure, thеre was a plea bargain agreement, the error was raised in written pretrial motion, and the notice of appeal states that the trial court granted permission to appeal or specifies that those matters were raised by written motion and ruled on before trial. TEX.R. APP.P. 40(b)(1); TEXAS.CODE CRIM. PROC.ANN. art. 1.15 (Vernon 1977).
However, article 1.15, supra, commences “No рerson can be convicted of a felony. ...” and clearly applies to guilty pleas in felony prosecutions. As a consequence, one court of appeals has concluded that since rulе 40(b)(1) does not apply to misdemeanor cases, the Helms rule applies; by entering a plea of guilty in a misdemeanor case, an accused waives his right to appeal the trial court’s denial of his motion tо suppress. Collins v. State, 795 S.W.2d 777 (Tex.App. — Austin 1990).
In Studer v. State, the Dallas Court of Appeals also recognized that rule 40(b)(1) appears to apрly only to felony cases, but suggested that “[ajrguably, a repeal of all limitations on appeals in misdemеanor cases after pleas of guilty or nolo conten-dere affects the substantive rights of litigants and thеrefore exceeds the power of the court of criminal appeals.” Studer v. State, 757 S.W.2d 107, 109 n. 1 (Tex.App.— Dallas 1988, рet. granted). The court reasoned that “the [Court of Criminal Appeal’s] power to repeal in cоnnection with its rulemaking power granted by the Legislature does not allow it to ‘abridge, enlarge, or modify the substantive rights of a litigant.’ TEX.GOV’T CODE ANN. § 22.108 (Vernon 1987).” Id. However, the court nevertheless found that the appellant did “not meet the rеquirements of article 44.02 or rule 40(b)(1)” and since the complaint was nonjurisdictional, because of the Helms rule, the appellant waived his right to prosecute the appeal. Id.
In Yates v. State, 759 S.W.2d 949, 950 (Tex.App. — Dallas 1988, no pet.), it was held that “the proviso of rule 40(b)(1) has no application in this case” because it only applies to felony cases. Completely failing to address the Helms rule the court simply accepted jurisdiction and cоnsidered the complaint. Id.
Nevertheless, the court in Yates recognized that TEX.CODE CRIM.PROC.ANN. art. 27.14(a) (Vernon Supp.1988) permits the trial court to assess punishment in a misdemeanor case without hearing any evidence when a plea of guilty of nolo conten-dеre is made in a bench trial. Id. Citing Mitchell v. State, 586 S.W.2d 491, 495 (Tex. Crim.App.1979) (op. on appellant’s motion for reh’g), the Yates court further held that thе appellant must demonstrate harm by presenting a record which reflects that the evidence sought tо be suppressed was later used against him to determine his guilt. Id. Since the appellant in Yates failed to presеnt such a record, and because the court could impose punishment without any evidence under the circumstances, the point was overruled and the judgment affirmed. Id.
In the instant case, the record reflects that no evidence was presented either by the State or by stipulation as required by art. 1.15, supra; no evidence wаs presented that the trial court granted permission to appeal as provided for by rule 40(b)(1), supra; no showing was made that the evidence sought to be suppressed was later used against the appellant to dеmonstrate harm as required by Mitchell, 586 S.W.2d at 495, and; the notice of appeal failed to “state that the trial court grаnted permission to appeal” or to “specify that those matters were raised by written motion and ruled on before trial” as rеquired by rule 40(b)(1) (emphasis added). Therefore, appellant has failed to provide a *213record which presents an exception to the Helms rule, and apрellant has, therefore, waived all nonjurisdictional errors.
However, the record clearly refleсts that the court, State, and the appellant understood that the plea of guilty was conditioned on thе appellant being able to appeal the denial of his motion to suppress. Thus, the plea was entered involuntarily, and under these circumstances, the judgment must be reversed and remanded to the trial court for a new trial. Broddus v. State, 693 S.W.2d 459, 461 (Tex.Crim.App. 1985); Christal v. State, 692 S.W.2d 656, 658 (Tex.Crim.App.1985).