*1 Beeville, Aliseda, appellant. Jose L. McKENNA, Appellant, Sean Moore, Beeville, appellee. C.P. NYE, C.J., Texas, Appellee. Before and SEERDEN The STATE of BENAVIDES, JJ. No. 13-87-399-CR. Texas,
Court of OPINION Corpus Christi. NYE, Chief Justice.
Sept. 1988. Appellant pled guilty to the offense of Rehearing Denied Nov. court, pursuant
sexual assault. plea bargain, punishment to a assessed years ten and a fine of confinement By appellant error points five $1500. complains of the trial court’s denial Appellant charged the offense with aggravated Shortly sexual assault. af- arrested, signed a appellant ter he was He filed a motion to written confession. alleging the confession he was right counsel, denied the to was coerced to confess, right and was denied the to be magistrate unrea- taken before a without delay. hearing, the trial sonable After a motion, finding the con- court overruled the voluntarily given. fession was Subse- quently, appellant entered a assault, to the lesser offense of sexual conditioned on his ruling on his motion to of the trial court’s Appellant stipulated the evidence and appearance, con- consented to waive the frontation, of wit- and cross-examination nesses. art. See Tex.Code Crim.Proc.Ann. stipulation 1.15. Included on the form was admitting that he com- а mitted the crime of sexual assault. The documentary appellant consented re- being introduced included offense by the vic- ports, affidavits or statements mother, and the victim’s and the extra- tim appellant sought to have judicial confession suрpressed.
Although pled guilty, he appellant statutory right has the pre-trial motion on the written because punishment did not exceed the assessed prosecu- punishment recommended *2 381 some and to hot wa- appellant. to Tex.R. his save agreеd tor and the take shower Furthermore, 40(b)(1). repeatedly the of App.P. Appellant Court her ter for shower. a determined that has shower at his take a suggested that W.C. ap not judicial confession does waive the this assented to the mother home. Aftеr right pre-trial to pellant’s complain W.C., arrangement, appellant undressed State, 504, ruling. 688 Morgan v. S.W.2d to him carried W.C. towel and put a around (Tex.Crim.App.1985). Similarly, 507 even house. his stipulated though appellant to the evidence shower, put a a he on After W.C. took to sought suppress, he he has which appellant on the couch. and sat with robe his to the trial court’s waived W.C., According they alone while were to pretrial ruling on motion to his home, appellant’s appellant opened at Stаte, (Tex. 722 417 S.W.2d performed appel- robe and the act W.C.’s State, Crim.App.1986); v. 740 Statman charged approx- with. This lasted lant was (Tex.Crim.App.1987). 464 S.W.2d imately minutes mother three until W.C.’s evidence, reviewing how After at moth- appellant’s arrived house. W.C.'s ever, we conсlude that we need not address questioned stated she about er that W.C. As appellant’s points appellant’s error. happened appellant’s had house at what guilty plea supported by evidence which appellant performеd her and W.C. told independent judicial and confession act. confession, challenged extra-judicial unchallenged, stipulated The ruling any pretrial erroneous motion a for trial provides sufficient basis guilty validity is immaterial to the of the error, Hence, judgment. any, if court’s this plea. by relying We reach conclusion ruling on the motion to court’s State, on v. S.W.2d 417 Johnson 722 suppress is not reversible. Crim.App.1986). Johnson, In AF- stipulated judgment defendant to The of the trial court is il- contained fruits of an FIRMED. legal and and to search seizure independently
which was obtained of the OPINION ON MOTION FOR illegal and The search seizure. Court held: REHEARING plea guilty nolo conten- [I]f contends, time, first Appellant for the required dere is evidence as rehearing guilty that his his motion for by Article which is voluntarily entered because plea was not judicial and tainted ability, on conditioned his obtain was evidence, than the erroneous on an appellate review of appealable pretrial motion not viti- does suppress his confession. on his motion to аte the 722 conviction. S.W.2d complaint properly before us Appellant’s aof conditional because the voluntariness case, evidence, In ex- stipulated this first on may raised for the time cluding extra-judicial con- rehearing. 624 S.W.2d Crawford fessions, еvery was sufficient to embrace (Tex.Crim.App.1981). 906 charged essential element of the offense guilt appellant. manifest the in his motion for re- Appellant concedes rely- hearing tht correct in this was Appellant sexually was as- arrested S.W.2d 417 ing on Jоhnson v. saulting stipulated testimony The W.C. deciding not to ad- (Tex.Crim.App.1986), victim, W.C., February was on that point regarding vol- dress his of error 1987, appellant visiting was at the home Appellant of his confession. untariness W.C.’s mother. six W.C. and W.C. was however, contends, guilty that since his years Appellant a door old. next on plea was conditioned neighbor mother of W.C. W.C. and his ruling, since the trial court’s preparing were leave their home impossible in meaningful appeal a evening to makes when W.C.’s mother told W.C. case, this voluntarily his was not en- correctness of a trial on a tered. guilty plea hearing legislature record of the amended the Code of Criminal
demonstrates
Procedure to allow a de-
pleading
pursuant
fendant
was conditioned on
review of the
to an arti-
рlea bargain
preserve
cle 44.02
appel-
trial court’s motion
ruling.
*3
late
by pretrial
review matters raised
Johnson
effectively
mo-
any
renders
review
Galitz
tion.
at 951. Following
meaningless.
amend-
circumstances,
Under these
ment,
evidentiary
certain
began
rules
we must decide
appellant’s
whether
convic-
develop which,
times,
foreclosed appel-
tion should be reversed because of the con-
late review of
by pretrial
matters raised
plea,
ditional
whether we should reviеw the
motion,
though
even
the amended Code of
merits of
complaint,
thereby
Criminal
provided
Procedure
appeal.
fulfilling the
aspect
plea,
conditional
origi-
whether we should adhere to our
Ferguson
State,
example,
For
v.
in
571
opinion
nal
and decline to address the mer-
(Tex.Crim.App.1978),
S.W.2d 908
the Court
its of
suppression ruling.
the trial court’s
of Criminal
held that
if the evi-
challenged
dence
by a
suppress
motion to
Appellant argues the conviction should
evidence,
was not introduced into
the de-
reversed,
State,
on Stinson v.
relying
preserved
fendant had not
the matter for
658
(Tex.App.
S.W.2d 820
Worth
— Fort
Ferguson,
appellate
review.
a case involv-
1988, pet. granted).
Stinson relied on
ing an article
guilty plea,
44.02
followed
State,
Mooney v.
(Tex.
judicial time on a mere esoteric exercise impact disposition
which can have no
of this case. holding
Accordingly, we follow the
Johnson required we are to do as an court,
intermediate and adhere to original opinion affirming judgment
our
of the trial court. invite the Court of Criminal
We Mooney
to resolve the conflict between
Johnson. rehearing motion for is OVER-
RULED. *5 ALLEN, Appellant,
Carlotta Texas, Appellee.
The STATE of
No. B14-86-101-CR. Texas, Dist.). (14th
Houston
Sept.