Lead Opinion
OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted upon his plea of guilty of possession of methamphetamine; his sentence was assessed at 15 years confinement.
The court of appeals found that after appellant’s written pretrial motion to suppress was overruled, appellant waived his right to trial by jury and entered a plea of guilty.
The court of appeals noted that in Haney v. State,
“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.”
Thus, the court below recognized that upon application of the rule in Haney, admission of fruits of the contested search was rendered harmless, even if unlawfully obtained; the court therefore declined to review the merits of the appellate contention.
However, the court of appeals also observed that the record of the plea hearing revealed it to be the understanding and agreement of all concerned — appellant, prosecutor, defense counsel and trial judge — that appellant’s plea was contingent upon his right to a meaningful appellate review of the search contention preserved by motion to suppress. The court of appeals concluded the plea was therefore shown to have been induced by the agreement that the search could be appealed (when Haney in fact would operate to prevent fulfillment of that agreement); accordingly, the plea could not be said to have been voluntary, citing Mooney (Dean) v. State,
Thus, the court of appeals was constrained to reverse the judgment of conviction and order the cause remanded to give appellant an opportunity to replead.
By petition for discretionary review, the State contends that Haney and Mooney are in “irreconcilable conflict” and urges us to overrule Mooney. We granted review in order to reconsider the underpinnings of both Mooney and Haney and their respective interrelation with the present version of Article 44.02, supra.
As we explained in Martin v. State,
“This new practice, however, does not change the rule in Stiggers v. State, supra, relied on here. If the guilty plea is supported by evidence (see Art. 1.15, supra) independently of the matter contested in the pre-trial motion, then any erroneous ruling on that motion does not*507 vitiate the conviction. Such is the case here.”
Ferguson, supra, at 910.
Before amended in 1977, Article 44.02 provided simply that a defendant “has the right to appeal under the rules hereinafter prescribed.” See Historical Note to Article 44.02. Helms v. State, supra, see note 1, ante, was decided in 1972 and was soon followed by, e.g., Chapman v. State, 525 S.W.2d 8 (Tex.Cr.App.1975) (claimed denial of speedy trial waived by guilty plea) and Cantu v. State,
Indeed, as found in Ferguson, supra, permitting an appeal in those circumstances was to encourage guilty pleas “where the only contested issue between the parties is some matter such as the lawfulness of a search, voluntariness of a confession, competency to stand trial, sufficiency of the indictment, or other matters that may be raiséd by written motion filed prior to trial,” id., at 910.
Having thus encouraged pleas of guilty and nolo contendere in exchange for the right to appeal contested pretrial issues, the Legislature surely contemplated a meaningful appeal — one that addresses and decides each issue on its merits. The Helms rule of waiver barring review was superceded. Ferguson, supra, at 910. Without let or hindrance the 1977 amendment to Article 44.02 opened the previously closed way to appellate consideration of issues raised and contested before trial.
To be sure, some appellants have “successfully navigated the procedurally hazardous passageway of Article 44.02,” Brown v. State,
As for the State’s contention that Mooney irreconcilably conflicts with Haney, we need only point out the true relationship between the cases was that the former was necessitated at least in part by the latter. But, having overruled Haney, we no longer need apply the rationale of
We hold appellant has adequately-preserved his search and seizure claim for appellate review on its merits. Accordingly, this cause is remanded to the court of appeals for that review.
Notes
. "Appellant contends that the court was in error in admitting evidence obtained as the result of an illegal search and seizure. Where a plea of guilty is voluntarily and understandingly made, all nonjurisdictional defects including claimed deprivation of federal due process are waived. ..... We perceive no error.”
. While the Stiggers-Ferguson formulation has never made preservation of error impossible, it is plain that it has operated as a "formal" obstruction to the "substantive” object of Article 44.02: the encouragement of guilty pleas.
Moreover, in the strictest sense we adhere to observations made in e.g., Galitz, supra, at 952, n. 10, but note that at this point it has become clear to us that in the context of Article 44.02, it is the understanding of the parties that, had the State been put to its burden of proof in a trial on the merits, fruits of the search most certainly would have been introduced to support the conviction. Conceptualized so, the ‘bargain” in-eludes relieving the State of that burden which in turn provides incentive to the prosecutor to suggest a recommendation which is palatable to the accused. This feature of the "consideration" underlying the plea bargain like all others, will facilitate the plea bargaining process and must be encouraged by the courts out of deference to the legislative intent of Article 44.02 — if for no other reason.
Thus in both the Ferguson and Haney contexts, it is appropriate to view the defendant’s judicial admission itself, literally, as a fruit of the contested search or seizure.
Dissenting Opinion
dissenting.
This petition for discretionary review requires us to examine the long smoldering conflict between the cases dealing with the right to appeal the rulings on pre-trial motions under Article 44.02, V.A.C.C.P., where there has been a plea of guilty or nolo contendere before the court and a plea bargain as to punishment approved by the court.
The appeal is from a conviction for possession of methamphetamine. Conviction was on a plea of guilty before the court to the primary offense, and a plea of “true” to a prior felony conviction alleged for the purpose of enhancement of punishment. Punishment was assessed by the court at 15 years’ imprisonment in the Department of Corrections.
Appellant’s written pre-trial motion to suppress the seized methamphetamine was overruled. Thereafter the State abandoned one of the prior felony conviction allegations, and appellant entered his plea of guilty before the court and his plea of “true” to the remaining allegation of a prior felony conviction. The court carefully admonished the appellant in accordance with Article 26.13, V.A.C.C.P. The appellant executed a “Written Waiver and Consent to Stipulations of Testimony and Stipulations” on a form as described in DeGay v. State,
On appeal appellant advanced grounds of error concerning the suppression ruling. A panel of the San Antonio Court of Appeals reversed finding fundamental error instead, with one justice dissenting. Morgan v. State,
Justice Dial, dissenting, contended that if the court followed Haney, which was factually identical to the instant case, the conviction should be affirmed. If not, Justice Dial felt that the search and seizure issue should be considered. He considered it and determined the trial court did not err in overruling the suppression motion. He would affirm the conviction.
We granted the State’s petition for discretionary review to determine the correctness of the Court of Appeals’ opinion.
In order to examine the question before us, a look at the nature of the right of appeal by a defendant in a criminal case, and the jurisdiction of the court is in order.
There is no federal constitutional right to state appellate review of state criminal convictions. McKane v. Durston,
The Texas Constitution does not refer directly to the right of a defendant to appeal a criminal conviction. It does provide that criminal appellate jurisdiction in the Court of Criminal Appeals is subject to such exceptions and such regulations as provided in the Constitution or as prescribed by law. See Article V, § 5, Tex. Const.; 21 Tex.Jur.2d, Crim.Law, § 1606, p. 403. With regard to the appellate jurisdiction of the Courts of Appeals see Article V, § 6, Tex.Const.
The only right of a defendant to appeal is a statutory right. Article 44.02, V.A.C.C.P. See also Powell v. State,
Thus appeals are within the control of the Legislature. “In the exercise of its powers, the Legislature may impose proper restrictions on the right of appeal, prescribe regulations in regard to appellate jurisdiction, and promulgate rules to be observed in prosecuting an appeal.” 21 Tex.Jur.3rd, Crim.Law, § 1606, p. 404; De Silva v. State,
Prior to the 1977 amendment Article 44.-02, V.A.C.C.P., simply provided:
“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.”
This broad grant of appeal regardless of the plea of the defendant,
Over the years certain procedures and rules of evidence developed, usually depending upon the nature of the plea, which were applied on appeal.
It is observed that a plea of guilty to a felony charge before the jury admits the existence of all necessary elements to establish guilt, and in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State,
The rule is different where the plea of guilty or nolo contendere is entered before the court in a felony case. Texas has a procedural requirement regarding guilty and nolo contendere pleas before the court in felony cases unlike that of most jurisdictions and even unlike such pleas in misdemeanor cases in Texas. Article 1.15, V.A. C.C.P., requires that the State must offer sufficient proof to support any judgment based on a guilty or nolo contendere plea before the court in a felony case. Thus, it is not enough in such a bench trial for the defendant merely to enter a guilty or nolo contendere plea, the State has an additional burden. The history of the statute and its requirements are discussed in Rodriquez v. State,
In a misdemeanor case when a defendant enters a plea of guilty before the court he
Another rule most relevant to our discussion is the so-called “Helms Rule.” In Helms v. State,
Important also to our discussion is the development of the motion to suppress
With the 1965 Code came Article 28.01, V.A.C.C.P. (Pretrial), which provided for pre-trial hearings on certain matters including “(6) Motions to suppress evidence— when a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court; .... ”
Question whether to hold a hearing on a pre-trial motion to suppress evidence is
As described in footnote 10 of Galitz v. State,
If a pre-trial motion to suppress was overruled and the defendant then entered a plea of guilty or nolo contendere, the preservation of any error based on the ruling was waived in light of the ‘‘Helms Rule.” To preserve a ruling on a pre-trial motion it was necessary for the defendant to plead not guilty.
Even if a defendant pleaded not guilty to preserve for appellate review an adverse ruling on his motion to suppress evidence, events that occur during the trial on merits could moot out the contention on appeal. For example, if the conviction was obtained upon a plea of not guilty without the use of the “tainted” evidence sought to be suppressed, the validity of the conviction was not affected by the ruling on the motion to ’ suppress, even if erroneous. Stiggers v. State,
Further, it is a general rule that the improper admission of evidence does not constitute reversible error if the same facts were proven by other proper testimony, Lovel v. State,
S.W.2d 619 (Tex.Cr.App.1976). See also Rener v. State,
Still further, if lawfully obtained evidence of guilt is overwhelming, any constitutional error will generally be considered harmless beyond a reasonable doubt. Harrington v. California,
Turning from these procedures and rules, it is observed that the repetitive amendments to Article 26.13, V.A.C.C.P. (Admonishments on Pleas of Guilty in Felony Cases), commencing in 1973,
In response to this rising concern, proposed legislation was offered in the 65th Legislature in the form of Senate Bill No. 334. The bill introduced by Senator Gene Jones of Harris County originally proposed to amend Article 44.02, supra, by adding thereto the following:
“... provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere may prosecute his appeal, he must have permission of the court.”
This proposal applied to the designated pleas whether before the court or jury. A fiscal note filed with the bill reflected that 35% to 45% of the appeals before the Court of Criminal Appeals involved guilty pleas.
On March 30, 1977, the Senate Committee on Jurisprudence reported to the Senate its recommendation that S.B. 334 not pass, but that the committee substitute adopted in lieu thereof do pass and be printed.
The committee substitute to S.B. 334, accepted by Senator Jones, read:
“provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo conten-dere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, may prosecute his appeal, he must have permission of the trial court.”
The committee substitute restricted the bill to the designated pleas before the court involving a plea bargain.
On April 7, 1977, a floor amendment to C.S.S.B. 334 was adopted by the Senate. The amendment added to the last line of § 1 of the bill after the last use of the word “court” the following:
“except on those matters which have been raised by written motion filed prior to trial.”
As amended the bill passed the Senate by viva voce on April 7, 1977. There was no debate on the floor amendment.
In the House of Representatives S.B. 334 was referred to the Committee on Criminal Jurisprudence. After a public hearing on May 10, 1977, that Committee on May 11, 1977, reported to the House its recommendation that S.B. 334 be passed with the following addition and amendment:
“This Article in no way affects appeals pursuant to Article 44.17 of this chapter.”
Said amendment referred to appeals from Justice and Municipal (nee Corporation) Courts to County Court for trial de novo. See Article 44.17, V.A.C.C.P.
On May 20, 1977 the bill, as amended, was passed by the House (Yeas 116, Nays 20, fourteen present not voting). The Senate concurred in the House Amendment by viva voce vote on May 23, 1977.
Thus Article 44.02 was amended in 1977 to read:
“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.” (Acts 1977, 65th Leg., p. 940, ch. 351, § 1, eff. August 29, 1977.)
As can be seen, the main thrust of the amendment was, of course, to eliminate as many appeals as possible and reduce the appellate caseload.
A defendant who enters a plea of guilty. or nolo contendere without a plea bargain, either before the court or jury, still retains the right of appeal at his option. The former appellate procedure regarding such pleas is not changed by Article 44.02. Cleveland v. State,
In Cleveland v. State,
“By its very language, Article 44.02, supra, does not limit appeals in cases, such as the instant one where the defendant pleads guilty before the court without a plea bargain and recommendation as to punishment. We conclude the Helms line of cases still applies to appeals such as the instant one. The trial court’s ruling on the motion to suppress is not before this court for review.”
Unless a defendant can bring himself within the amendment to Article 44.02, the provisions thereof do not apply. See Morgan v. State,
If a defendant falls within the provisions of the 1977 amendment, he has no right of appeal at all without the permission of the trial court save and except the appeal from rulings on certain pre-trial matters. If an appeal from the plea itself is permitted within the discretion of the court, there is nothing to indicate any legislative intent that the appeal can be greater in nature or scope than an appeal permitted by law where the guilty plea is without a plea bargain. Thus if the court permits an appeal from the plea itself under the amendment to Article 44.02 where there is a plea bargain, it cannot enlarge upon the type of appeal to be accorded the defendant. A defendant who has already benefitted from a plea bargain, and who normally would have no appeal at all, is not entitled to a greater right of appeal merely because he gains permission of the trial court. This is plain from the language of the statute. Article 44.02 was not intended to create an artificial distinction between the two forms of guilty pleas. The court cannot waive statutory or other requisites and permit an appeal the defendant would not otherwise be accorded.
While certain plea bargain guilty or nolo contendere pleas cannot be appealed without the permission of the trial court, the Legislature added “except on those matters which have been raised by written motions filed prior to trial.” The provision authorizes a defendant to appeal such pre-trial matters as a matter of right with the consent of the prosecution or approval of the trial court. The issue sought to be appealed need not be dispositive of the appeal. In fact, there is no statutory limitation on the nature of the pre-trial matters. Cf. Article 28.01, Y.A.C.C.P. The right, of course, arises only where there is a conviction on a plea of guilty or nolo contendere following a plea bargain as to punishment. There
Ferguson v. State,
In Haney v. State,
Then came Wooten v. State,
Wooten was wrongly decided. He filed a written pre-trial motion to dismiss his robbery indictment for lack of a speedy trial under Article 32A.02, V.A.C.C.P. It was overruled. The panel opinion reflects:
“This motion was heard on May 30, 1980. The trial judge’s docket entry was:
“ ‘Defendant appeared with attorney Carl Green and hearing had regard to Defendant’s motion for speedy trial. [Sic] Motion overruled and Defendant preserved his right to appeal and then plead guilty after being fully admonished and was found guilty based on the confession of guilty. Punishment postponed to Monday 6-2-80.’ [Emphasis supplied]”
*518 “ ‘Your Honor, I believe at this time, observing out appellate [sic] rights on the Speedy Trial issue, which have just been removed, we would now like to plead guilty to the charges pending in this cause.
“(Speedy Trial proceedings concluded.)’ “The transcription resumes in a separately bound volume (which is captioned, ‘GUILTY PLEA AND PRESERVING THE RIGHTS ON SPEEDY TRIAL’); it begins:
“ ‘MR. GREEN: Your Honor, I believe at this time we are reserving our appellate rights on the Speedy Trial issue. Mr. Wooten would now like to plead guilty to the charge pending in this cause.
“‘THE COURT: Is that right, Mr. Wooten?
“ ‘MR. WOOTEN: Yes, Your Honor. “ ‘THE COURT: You understand that by pleading guilty, you are not any which way waiving any right you have in connection with Speedy Trial.
“MR. WOOTEN: Yes, sir.’
The proceedings ended as follows:
“THE COURT: One thing I want to stress before getting into the punishment stage: if I follow the recommendation, I will go lower than the recommendation and you will have no right of appeal in connection with your guilty plea; but you will have on the Speedy Trial.
“MR. GREEN: Thank you.
“THE COURT: Is that part straight? “MR. WOOTEN: I understand.
“THE COURT: You have no right of appeal without my consent. I would like to have the questions answered, too.
“MR. GREEN: Thank you, Your Hon- or.
“(Whereupon proceedings concluded.)
“It could scarcely be more clear that there was an arrangement, approved by the court, which induced the appellant to plead guilty in the belief that he could appeal the issue on his rights under the Speedy Trial Act. The trial court was not authorized to receive this plea, and the plea cannot be said to have been made knowingly and voluntarily. On remand the appellant must be allowed to replead.
“The judgment is reversed and the cause is remanded.” (Emphasis supplied.)
The facts do not support the assertion there was a court approved “arrangement” which induced Wooten to plead guilty. Pri- or to the guilty plea appellant’s counsel announced the right to appeal the pre-trial ruling was being preserved. Counsel was aware of the statutory right which is not dependent upon the consent of the prosecution. There was, of course, a colloquy between the court and Wooten and his attorney. Much of that quoted dealt with the requirement under Article 26.13(a)(3), V.A. C.C.P., that the defendant be duly admonished. Said statute reads in part;
“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of
ii(l) * * *
«(2) * * *
“(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial.” (Acts 1979, 66th Leg., p. 1108, ch. 524, § 1, eff. Sept. 1, 1979.)
The above quoted amendment was in effect at the time of Wooten’s guilty plea on May 30, 1980 and was followed by the trial court. Merely following the dictates of the statute does not constitute “approval” by the court of an “arrangement” by the State
Wooten is actually quite similar to the facts in Young v. State,
Now why did the Wooten panel reach the decision it did?
Because the panel in Wooten, citing Flores v. State,
Needlessly to say the law at the time of the Wooten plea was far from settled. Yet Wooten not only presumed the trial judge was aware of the status of the law but used it to improperly induce Wooten into pleading guilty when he should have used it to reject the guilty plea.
Of course, as we now know, Martin v. State,
Mooney v. State,
The plea and the stipulations were determined by the trial court to be freely and voluntarily entered.
This Court’s panel held that due to Mooney’s “stipulation to the commission of the offense the errors presented in his motion to suppress are not appealable under Article 44.02, supra.” The panel then stated, “... the trial erroneously apprised the appellant of the effect of his plea.” Of course, this was not right. Merely informing a defendant of his statutory right of appeal of a pre-trial ruling under Article 44.02, supra, or admonishing him under Article 26.13(a)(3), V.A.C.C.P., does not indicate, as the panel said, that the plea was induced by an understanding that the matters raised by the suppression motion would be accorded appellate review on its merits regardless of the circumstances.
Apparently what concerned the panel was the fact the court “never advised the appellant that the effect of his stipulations to the commission of the offense would be to foreclose his right to appeal the pre-trial matters raised in his motion to suppress.” The panel obviously considered it the duty of the trial court to intervene, sua sponte, when evidence is being offered in support of the guilty plea, and to advise the defendant as to the effect of each piece of evidence if it might affect the outcome of the appeal.
After citing Wooten, the Mooney panel found Mooney’s plea involuntary and in violation of due process and reversed the conviction saying the court should not have accepted the guilty plea.
In Stinson v. State,
“We do not agree however, with the broad statements in Mooney which are unsupported in other eases the Court of Criminal appeals has handed down upon the issues raised herein. See Haney v. State,588 S.W.2d 913 (Tex.Cr.App.1979); Ferguson v. State,571 S.W.2d 908 (Tex. Cr.App.1978); Stiggers v. State,506 S.W.2d 609 (Tex.Cr.App.1974). * * * the Court of Criminal Appeals stated that due to Mooney’s stipulation to the commission of the offense, the errors presented in his motion to suppress are not appealable under Tex.Code Crim. Proc.Ann. art. 44.02 (Vernon 1979). In our opinion art. 44.02 does stand for the above proposition.”
After setting out Article 44.02 and citing cases where under statute this Court had held there was jurisdiction to hear the appeal [Wheeler v. State,
“The motion to suppress filed by Stin-son in this case is appealable under art. 44.02 because it was raised in a pre-trial written motion and the court had an opportunity to consider it. Haney v. State, supra....
“The court in Mooney also stated that the effect of Mooney’s stipulation to the commission of the offense was to foreclose his right to appeal the pre-trial matters raised in his motion to suppress. We did not read other cases handed down by the Court of Criminal Appeals to be in support of this statement.
“The effect of entering the stipulation does not foreclose the right to appeal. That right is afforded a defendant under art. 44.02 as we stated above. The stipulations do have the effect however of rendering errors dealing with the motion to suppress harmless. This is because of the holdings in cases of Stiggers v. State, supra; and Haney v. State, supra. If the evidence seized as a result of the illegal search is not introduced in evidence at the hearing on the plea, any error with respect to such search is not reviewable. This is because nothing is presented for review. Stiggers v. State, supra. If the evidence is introduced in evidence, the judicial confession will nullify the prejudicial effect of the introduction. Haney v. State, supra.
“Under these cases, although a defendant has a right to appeal his overruled motion to suppress evidence, his appeal is of no practical effect.
“The decision in Mooney seems to require that the trial court advise the defendant of the effect of the entering of his stipulation in evidence. The failure of the court to do so renders the plea involuntary and the cause must be reversed and remanded for new trial. Wooten v. State,612 S.W.2d 561 (Tex.Cr. App.1981).”
Much of what was said in Stinson about Mooney is well taken. Further and most important with regard to the statement in Mooney that the trial court never advised Mooney that the effect of the stipulation (judicial confession) would foreclose his right of appeal, there is found no precedent for such statement.
In fact, while it may be better practice, it has been said Texas has no procedural rule requiring the trial court to advise a defendant of his right of appeal and the procedure. Ex parte Engle,
Even this amendment to Article 26.13 imposes no duty on the trial court to sua sponte advise a defendant on the possible legal effect of each item of evidence as introduced.
“The trial court has no duty under Tex. Code Crim.Proc.Ann. art. 26.13(a) (Vernon 1966) or otherwise, to warn against or to correct all of a defendant’s misbegotten expectations of the scope of his appellate rights.”
In Rose v. State,
“We know of no rule requiring the court to instruct the accused on every aspect of the law pertinent to the case when the accused pleads guilty. It is not the court’s function to act as legal counsel for the appellant. (Emphasis supplied.) See also Cevalles v. State,513 S.W.2d 865 , 866 (Tex.Cr.App.1974).
Mooney was clearly wrong in holding that the trial court must advise a defendant as to any effect of every stipulation, confession, or other item of evidence (offered to support his guilty plea) on his right to appeal pre-trial matters under Article 44.-02, V.A.C.C.P.
Still further Mooney is in sharp conflict with Haney v. State,
Under Mooney the Haney trial court would be faulted for failing to apprise Haney that the effect of his judicial confession would be to foreclose his appeal and for accepting the guilty plea.
The ultimate effect of Wooten and Mooney has been described as “a yoke on the neck of justice.”
Mooney and Wooten were not properly decided on the facts of either case, and I would adhere to Haney and Ferguson. In so doing I would emphasize that a defendant is free to actually prove that his guilty plea was not voluntary or that it was improperly induced by one in authority,
Turning to the facts of the instant case set forth at the beginning, I find they are almost identical with those of Haney, and that decision is here controlling. The judicial confession was sufficient alone, independent of other evidence, to sustain the conviction based upon the guilty plea, even though the “tainted” evidence was also introduced.
Today’s majority, however, views the judicial confession as the principal hazard to review on appeal of rulings on pre-trial motions where the defendant has entered a plea of guilty or nolo contendere under the provisions of Article 44.02 and a judicial confession is entered, and the Stiggers-Fer-guson formulation is applied. However, a
Concerned that admissible judicial confessions or admissions made in open court “substantially vitiates the amendment,” the majority holds “Just as the plea itself no longer waives the right to complain of pretrial rulings on appeal, so the confession or admission will not bar an appellate court from reaching the merits of the complaint. To this extent, then, Ferguson and its progeny including Haney are overruled. * * * having overruled Haney, we no longer need apply the rationale of Mooney and Wooten in the context of convictions obtained under Article 44.02.”
What the majority is saying is that if the appellate court finds the trial court erred in its pre-trial ruling, the cause is reversed despite the guilty plea and despite a judicial confession freely and voluntarily given so as to be admissible in evidence. So if the Constable blunders, there must be a new trial or perhaps the defendant even goes free despite the fact he has confessed the crime in open court. And this is so because the majority says it is the legislative intent. I seriously doubt that the Legislature would embrace that conclusion for reasons earlier stated.
Supposedly the majority would argue a judicial confession under the circumstances would be “suspect from the beginning.” What happens then if the appellate court finds the trial court properly overruled the pre-trial motion, is the conviction affirmed with the “suspect” judicial confession as the basis therefor? Does the validity of the judicial confession as evidence depend upon the appellate court’s decision on the trial court’s pre-trial ruling? What if there is a reversal because of the pre-trial ruling, may the judicial confession be utilized at a possible second trial? What do “admissions in open court” encompass? Do they include stipulations?
There are other questions. What if, in addition to the judicial confession, the State introduces other evidence independent of the “tainted” evidence involved in the pretrial motion which in and of itself is sufficient to support the conviction based on the guilty plea, then is Ferguson alive and well to that extent? May the appellate court then affirm the conviction without the necessity of passing on the pre-trial ruling?
Now we have one rule in pleas of not guilty, see Stiggers v. State, supra, and a different rule for guilty pleas under Article 44.02 where pre-trial rulings are sought to be appealed with many questions left unanswered.
For all the reasons stated, I respectfully dissent.
. The State contends Haney and Mooney are in hopeless conflict.
. Article 27.02, V.A.C.C.P. (Defendant’s Pleadings), provides, inter alia, for (3) a plea of guilty, (4) a plea of not guilty and (5) a plea of nolo contendere. Under Article 27.02, supra, the legal effect of a plea of nolo contendere is the same as a plea of guilty insofar as the criminal prosecution is concerned. Martinez v. State,
. See former Articles 813, 826 and 829, V.A.C. C.P., 1925, and their forerunners.
. The feature of the guilty plea procedure before the court which has evolved over the years has been the manner in which evidence is offered to support the guilty plea. The forerunner to Article 1.15, V.A.C.C.P., also required evidence to support a judgment based on a guilty plea before the court. When this writer first became a district judge in 1957, the practice in Bexar County was to present live testimony in support of guilty pleas before the court with an occasional use of stipulations, the use of a sworn statement of witnesses after the waiver by the defendant of the appearance, confrontation, and cross-examination of the witness. In order to provide an approved procedure for the use of stipulations and to preserve evidence Article 1.15 was enacted in 1965. Other methods of proof were not eliminated, but the upshot of the change was to drastically increase the use of stipulations to satisfy the requirements of Article 1.15. The change gave rise to the use of new forms, some quite good, which included the stipulations, a written judicial confession and certain catch all phrases all sworn to by the defendant. See, e.g., DeGay v. State,
. It has been held in this state that a plea of guilty waives search and seizure questions, Graham v. State,
This Texas rule is in accord with the traditional rule in most jurisdictions that a guilty plea traditionally has constituted a waiver of a defendant’s right to appeal a conviction on grounds other than jurisdictional violations. See Parker v. North Carolina,
In Tollett v. Henderson,
“[A] guilty plea represents a break in the chain of events which preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [Parker, McMann and Brady].”
In Texas Article 1.27, V.A.C.C.P., provides:
“If this code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern.”
Article 38.01, V.A.C.C.P., provides:
"The rules of evidence, known to the common law of England, both in civil and criminal cases, shall govern in the trial of criminal actions in this State, except where they are in conflict with the provisions of this Code or of some other statute of the States.”
Prior to the Hoskins-Helms line of cases the researcher may find few, if any, Texas cases speaking of the common law rule that a guilty plea waives all nonjurisdictional defects. It must be remembered that until 1931 a guilty
Under a guilty plea before either the court or judge, the court is required to exercise great care in preventing the improvident entry of a plea of guilty, and a liberal practice prevails touching the withdrawal of the plea. Garcia v. State,
If during the proceedings the defendant considers the evidence insufficient, or for any unassigned reason he may withdraw the plea as a matter of right. Ralls v. State,
The defendant is authorized to withdraw his guilty plea before the court at any time before the court announces its judgment or has taken the case under advisement, Milligan v. State,
Further, and most important to our discussion, it was also well established that if the evidence, introduced before the court or jury on a guilty plea, made evident the innocence of the defendant or which reasonably and fairly raised an issue as to such fact, and such evidence was not withdrawn, then it became the obligation of the court, sua sponte, to withdraw the guilty plea and enter a not guilty plea for the defendant if he failed to do so himself. Reyna v. State, supra; Burks v. State,
While the above rule has been modified somewhat in guilty pleas before the court by Moon v. State, supra, Sullivan v. State,
Remember, too, that in this state a defendant has always been able to appeal his conviction based on a plea of guilty or nolo contendere claiming that it was not freely and voluntarily entered, that he was not properly admonished (Article 26.13, V.A.C.C.P.), that the State did not offer sufficient evidence (Article 1.15, V.A.C. C.P., where plea is before the court), that he did not have effective assistance of counsel, etc. These have always been the most common complaints raised on appeal following guilty pleas.
. Acts 1973, 63rd Leg., p. 968, ch. 399, § 2(A); Acts 1975, 64th Leg., p. 909, ch. 341; Acts 1977, 65th Leg., p. 748, ch. 280. See also Acts 1979, 66th Leg., p. 1108, ch. 524, § 1, eff. Sept. 1, 1979; Acts 1979, 66th Leg., p. 1160, ch. 561, § 1, eff. Sept. 1, 1979.
. To the extent of conflict, Galitz v. State,
. "An appeal lies only from a final judgment and not from the granting or refusal of a preliminary order or an interlocutory order.” 26 Tex.Jur.3rd, Criminal Law, Appellate Review, § 3912, p. 68.
. It is often argued that in view of trial court docket congestion, judicial economy, etc., that a defendant in a criminal case should be able to preserve for appeal legal questions the trial court has resolved against him without being required to go through a futile trial on the merits. It has been said an approach along this line is more "sensible" particularly where the prosecution consents. United States v. Doyle,
Those opposed often say there is a logically inconsistency in a defendant admitting legal guilt in open court and being able to maintain a claim that might enable him to escape punishment, that a "conditional” plea conflicts with the public interest in achieving finality in a criminal case, that such a plea may cause the State to try the case after substantial delay, during which time witnesses may be lost, memories dimmed, and the prosecution prejudiced, that such pleas result in a flood of appellate litigation. See generally Comment, Conditional Guilty Pleas, Post-Guilty Plea Appeal of Non-Jurisdictional Issues, 26 U.C.L.A. L.Rev. 360; Notes, 93 Harvard L.Rev. 564; 9 Houston L.Rev. 305.
The arguments for and against conditional pleas are summarized in People v. Thomas,441 N.Y.S. 650 , 652, 424 N.Ed.2d 537,53 N.Y.2d 338 (1981).
In U.C.L.A. Law Review, supra, Vol. 26, at p. 367 it is written:
"Three procedures have been developed to circumvent the traditional rule’s preclusive bar to appellate review of nonjurisdictional errors.
The most controversial method originates in the trial court on an ad hoc basis. This procedure is termed a ‘conditioned plea': an agreement which the defendant pleads guilty in return for the express right to appeal a specific nonjurisdictional issue. A second approach, stipulation to a preliminary examination transcript simply avoids the traditional rule. The courts construe a finding of guilt based upon stipulation to be equivalent to a verdict of guilty after a trial on the merits. The third method involves the legislative enactment of statutes that expressly exempt certain nonjurisdictional issues from foreclosure of appellate review."
With regard to the first procedure, it is said that the conditioned plea is an agreement between the defendant and prosecutor approved by the trial court which allows preservation of specific non-jurisdictional issues for appellate review in exchange for the defendant’s guilty plea. This is usually done only when the issue reserved is dispositive of the prosecution's ability to convict the defendant. See United States v. Zudick,523 F.2d 848 , 851 (3rd Cir.1975); State v. Crosby,338 So.2d 584 , 591 (La.1976). These conditional pleas originating in the trial court without rule or statute, or sometimes without decisional precedent, have met with mixed reaction in both federal and state courts. U.C.L.A. Law Review, Vol. 26 at p. 368. Some appellate courts have exercised jurisdiction because they felt compelled to honor the plea agreement even though not of "their own making.” See, e.g., United States v. Cox,464 F.2d 937 (6th Cir.1972); Dorsey v. Cupp,12 Or.App. 604 , 609,508 P.2d 445 (1973). Others have rejected the same, disallowing conditional pleas based upon a guilty plea for various reasons. See, e.g., State v. Dorr,184 N.W.2d 673 (Iowa 1971).
While Texas is listed as having refused to permit conditioned pleas of guilty, U.C.L.A. Law Review, Vol. 26 at p. 373, this Court has never considered a true ad hoc conditional plea originating in the trial court with the agreement of all the parties and approval of the court. However, in Chavarria v. State,425 S.W.2d 822 (Tex. Cr.App.1968); Killebrew v. State,464 S.W.2d 838 (Tex.Cr.App.1971); and Kilpper v. State, 491
*517 S.W.2d 117 (Tex.Cr.App.1973), the convictions based on guilty or nolo contendere pleas were reversed because the pleas were improperly induced because the defendants were left with the impression they were retaining the right to appeal the rulings in their motions to suppress evidence. The pleas were held not to have been voluntarily made. This Court did not discuss as such the validity of any ad hoc agreement in the trial court.
Omitting a discussion of the second method [See, however, Zappas v. State,650 S.W.2d 131 (Tex.App. — Houston [14th Dist.] 1983) (Pet. for Dis.Rev. granted and pending).], it is observed that the third method utilized to avoid the waiver of nonjurisdictional issues is through the enactment of express statutory exemptions to the traditional rule. New York was the first jurisdiction to enact legislation which provided "an order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding that such judgment upon a plea of guilty.” N.Y.Crim.Proc.Law, § 710.20(1) (McKinney 1977). This statute has served as a model for similar legislation in California (Cal. Penal Code, § 1538, S(m) (West Supp.1978) and Wisconsin (Wis.State Ann., § 971.31(10) (West 1971). Under this type of statute the issues of illegal search and seizure are exempted from the otherwise preclusive rule following guilty pleas. The statute stops with the single exception it creates, leaving untouched the waiver of other constitutional rights.
Federal Rules of Criminal Procedure, Rule 11(a)(2), as amended in 1983 reads:
"(2) Conditional pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.”
The Texas procedure set forth in Article 44.02, V.A.C.C.P., does not require the consent of the prosecution or the approval of the court nor is it limited to search and seizure questions as in other states.
. The trial court should not engage in plea bargaining. State ex rel. Bryan v. McDonald,
. The colloquy is set out in part in Mooney, supra, at pp. 777, 778.
. It is observed that at the time of the plea in Mooney formal notice of appeal in accordance with Article 44.08, V.A.C.C.P., had not yet been given. Mooney does not explain how the trial judge is to give advice on the legal effect of a judicial confession, etc., on an appeal where notice of appeal is not required to be given until the time set by Article 44.08. We do note in Strother v. State,
. Prior to the amendment, however, it was held in Eubanks v. State,
. In Newell v. State,
Still further, Article 26.13, V.A.C.C.P., does not require the court to inform a defendant of his right to probation, Vasquez v. State,
The court under Article 26.13 also need not inform the defendant of its discretion to cumu-late sentences, Simmons v. State,
. Article 27.14, V.A.C.C.P., provides that in pleas of guilty or nolo contendere in misdemeanor cases punishment may be assessed by the court with or without evidence within the discretion of the court. And when a defendant enters a plea of guilty before the court, he admits every element of the offense. Ex parte Clinnard,
Mooney, also a misdemeanor case, made clear though that Isam was to be restricted to cases where the trial court heard no evidence. It applied other rules where evidence was heard.
Left unclarified is the rule in misdemeanor cases where the court hears some evidence but certainly not evidence sufficient to support the plea as required by Article 1.15, V.A.C.C.P., in felony cases.
The impact of Isam is that in certain misdemeanor cases it gives an interlocutory appeal to certain defendants on overruled motion to suppress which is nothing more than a glorified or specialized objection. Zillender v. State,
Most interestedly Isam should never have been written as it was. An examination of the appellate record shows that Article 44.02, as amended, was never applicable to Isam. The only mention of a plea bargain was the trial judge’s statement that he was assessing punishment within the range of the "plea bargain." There was nothing to show what punishment, if any, was recommended by the prosecution, or that the defendant and his attorney agreed, certainly nothing to show the defendant's personal assent to the punishment. Article 44.02, as amended in 1977, was not applicable. Cleveland v. State,
. In Zappas v. State,
"A conditional plea of nolo contendere or guilty made by agreement of defendant, prosecutor and trial court places a yoke on the neck of justice and creates a situation that forces the Court of Appeals to reverse and remand cases to the trial court for a re-plea and/or trial.” (Emphasis supplied.)
. See Hessbrook v. State,
. An interlocutory appeal of a pre-trial ruling using a “conviction” as a facade was not what was contemplated by the Legislature.
Concurrence Opinion
concurring.
In this instance, the majority opinion holds, for purposes of Art. 44.02, Y.A.C. C.P., that if the defendant files a written pretrial motion to suppress, after which a hearing is held thereon but the trial judge denies or overrules the motion, and thereafter the defendant enters into a plea bargain agreement, which entitles him to appeal the trial court’s ruling on the motion to suppress, and the plea bargain agreement is consummated, if there is an appeal, an appellate court will review the merits of the defendant’s contention, that the trial court erred in denying or overruling the pretrial motion to suppress, without resorting to any sort of legal “technicality” in order to avoid addressing the issue whether the trial court erred in denying or overruling the motion to suppress. See and compare Dees v. State,
With the above qualifying remarks, I join the majority opinion.
However, but in order that there be no mistake or misunderstanding about what the majority opinion is actually holding, it, the majority, should expressly overrule the following cases of this Court: Strother v. State,
Additionally, but to further eliminate any question about what it is holding, it, the majority, should also expressly overrule language in the following cases which appears to state or hold that which is contrary to what it is holding in this cause: Snyder v. State,
With the above qualifications, and recommendations, I respectfully, but wholeheartedly, join the majority opinion.