Morgan v. State
656 S.W.2d 171
Tex. App.
1983
Check Treatment

*2 DIAL, CANTU, Before TIJERINA and JJ.

OPINION

CANTU, Justice. This is from conviction repeat possession methamphetamine as a nonjury upon in a offender at fifteen trial. Punishment was assessed Depart- in the confinement Texas years’ ment of Corrections.1 error con- grounds in two

Appellant tends that trial court erred in overrul- meth- suppress his motion to seized ing error, Finding fundamental amphetamine. we reverse and remand.

After the trial court overruled the motion right waived his suppress, guilty. and entered a jury trial ac- court assessing punishment, sentencing recommendation cepted personally prosecutor which had but Subsequently, agreed by appellant. trial court reduced sentencing, the before the thirty years from years. a term fifteen agreed search legality The issue of the to! motion filed was raised written has and, addition, the trial court in appeal. given permission specifically therefore, entertain We, jurisdiction art. Crim.Proc.Ann. appeal. this 1979). appel- guilty plea hearing At the on writ- instrument entitled lant executed an stipulation consent ten waiver and contained testimony stipulations and reports, including police exhibits numerous papers and other laboratory reports analysis count. of the enhancement support and consent In the written waiver and testimony stipulations stipulation Antonio, for Langlois, Richard E. San following language: contained appellant. to- under oath person Said attorney Canales, and with counsel White, Atty., Bill Dist. Hipólito gether further Texas Rosson, the State Jr., Attys., representing Asst. Dist. San Jerry he, said Antonio, stipulates agrees for appellee. dis- years originally habitu- indicted as a 156). (80-CR-l bargaining pending cause al offender to a but missed another count, State waived the habitual evi person is the identical named But if the contested suppression sup at trial alone dence is admitted and it above-styled indictment in the necessary support plies proof numbered cause and that all the acts will guilty plea, this court conviction allegations (Count said indictment Nos. review the adverse indictment) 1 and 2 of the charging *3 44.- pursuant motion to article suppression of offense Possession of Methampheta- hand, the other if the supra. On correct, mine are true and and that the independent is evidence plea supported acts therein alleged occurred in Bexar mo the in the pretrial of matter contested County, Texas. tion, on that mo ruling then erroneous Also contained in the the instrument is Fergu tion the conviction. does not vitiate following language: State, (Tex.Cr.App. son v. 571 S.W.2d 908 confesses judicially that on [Defendant 1978). 12, 1976, August in the 186th Judicial State, 913 Haney v. 588 In S.W.2d District Court of Bexar County, in the (Tex.Cr.App.1979) Court of Criminal No. the Cause 76CR0128-C on docket of the rule Appeals long accepted reiterated Court, Guy Morgan said the said under judicial allegations that a confession to the name of Guy Morgan, the Ossie duly to of an will alone be sufficient indictment legally and convicted in said last named on a support guilty plea. a conviction [Cit a court of to-wit: felony, Attempted Bur- State, (Tex.Cr. 573 ing Cooper v. S.W.2d 533 Habitation, of a glary upon an indictment State, 180 v. 571 App.1978), Potts S.W.2d legally pending then in said last named State, 528 Byrom v. (Tex.Cr.App.1978); of court and which said court juris- (Tex.Cr.App.1975); 224 Henderson S.W.2d diction; and said conviction was a final State, (Tex.Cr.App. v. 519 654 S.W.2d conviction and was a conviction for an 1975)]. offense committed the a confes Haney, supra, judicial to the commission of the offense herein- the testimony during sion entered through charged him, before against as set forth the guilty plea alone sufficed to support in the first hereof.2 paragraph the independent as “evidence conviction The indictment in the first al- paragraph the pretrial matter in motion.” contested in leged pertinent on part, or about “[A]nd The was therein that an observation made day the 10th March A.D. Mor- to ruling erroneous on motion then gan knowingly did and there in- at most be harmless error suppress would possess substance, tentionally a controlled because otherwise confession complete namely: ...” Methamphetamine; “overwhelming met evi the standard majority The of the exhibits in contained to guilt” dence of so as render constitution the written to stipula waiver and consent beyond al harmless a reasonable error tions of testimony stipulations relate doubt. at 914-15. 588 S.W.2d the contested evidence suppression sup tes- In the did not instant ply proof necessary support but he tify Haney, the defendant in did guilty plea conviction. See Crim. stipulation did the written enter into 1979). art. Proc.Ann. wherein he admitted the truthfulness indictment. allegations a evidence from contested When State, 189 State, 490 is not In Adams v. S.W.2d search introduced language the exact same (Tex.Cr.App.1973), trial court’s erroneous on the admis judicial a confession. sibility of such will not serve as was constitute evidence held to suffi type stipulation for a Brew This “catch-all” appeal. the basis reversal confession (Tex.Cr.App. ster v. cient constitute support a conviction. 1980). which alone will stipulation. Referring preceding paragraph ing an contain- additional stipulated Potts v. Miles v. supra. See also dere State, 486 (Tex.Cr.App.1972); stipula offense and such S.W.2d commission (Tex. McNeese into tion was admitted evidence. Cr.App.1971). defendant was bargain review Therefore, the evidence is sufficient 44.02, sought provisions support guilty plea without reference not The Court of Criminal supra. alleged improperly the contraband to be judi accompanied by such ed that supra. Sny admitted. Cf. amounting to a confession stipulation cial (Tex.Cr.App. der v. 629 S.W.2d 930 but review notably appellate foreclosed are, 1982) (en banc). however, present We the trial court importantly deprived more ed with the same problem plagued condi the defendant’s authority accept Court of Appeals Mooney Criminal The court held that plea. tional *4 State, 615 776 (Tex.Cr.App.1981). S.W.2d the of erroneously apprised appellant court the was hearing plea When on the guilty the by plea accompanied the effect his announcements, called for an- appellant judicial admission. swered to his ready subject that he was motions. the trial admonish- During court’s In quoting from Wooten appellant through attorney ments re- his supra, the court stated: minded the that intend- trial court he was entered such an plea If the was with ing preserve ruling review the adverse that the understanding or on the the trial suppress motion to preserved would be merits the motion appellant’s court announced acknowledged not the trial court was appeal, for then intentions. law to such accept authorized by State thirty- the sentencing hearing At some a matter constitutional plea.... As attorney days appellant’s seven later cannot be said to guilty plea law a his brought to the trial court’s attention an by if it was induced voluntary once seeking second for new trial motion the court that agreement approved by again preserve review on the overruled that appealed could be when question sentencing Following motion suppress. not be fulfilled. agreement could [Em- appellant gave appeal oral notice of limited supplied.] phasis by to those motion pretrial matters raised Wooten, is As in it supra at 778. Mooney, and the court once acknowl- again arrange- clear there an plainly that ap- edged appellant’s plea by conditional court, ment, which induced approved by the appellant counsel to assist at State pointing the belief plead guilty appellant Undoubtedly, pro- all expense. parties suppress the motion to appeal that he could the belief guilty plea ceeded with the although impediment an ruling burdened being pre- review was meaningful that Under circumstanc- preventing review. served. es, and volun- plea knowingly was not (Tex. In Wooten v. S.W.2d appellant is enti- made. remand tarily On of Criminal Cr.App.1981) is reversed replead. tled exception general recognized that an the cause remanded. is 44.02, supra, in those rule of Article existed DIAL, Justice, dissenting. motion under pretrial cases where a majority’s disposition I dissent from sought to be reviewed Speedy Trial Act was of this case. held following a it was guilty plea.- There pos- plea viola alleging such a motion that after the methamphetamine session because tions of Act was nonreviewable suppress a motion to court overruled waived. renders defects methamamphetamine. The trial the seized Mooney supra, In the defendant less than assessed a ruling court sought review adverse prosecution conten- motion to a nolo suppress following agreed appellant attorney. and his reach the same result and affirm the con- At of guilty, appellant’s counsel passing viction on the search and without indicated he wished to preserve question though apparently pre- seizure the court’s on the suppress. motion to served for review under article 44.02. If Since issue of the legality search we do not on the search and seizure pass aby raised written motion filed prior 44.02 would question, the article purpose trial, this issue is before us. properly State, 582 be frustrated. See Isam v. Tex.Code Crim.Proc.Ann. art. 44.02 441, 442 What (Tex.Cr.App.1979). S.W.2d 1977);1 Legislature intended 909 (Tex.Cr.App.1978); Haney v. contending and what the here (Tex.Cr.App.1979). is that if the officers did not violate the rights of the then he should be court, At the before the trial appel- assessed for which bar- lant stipulated to the commission of the gained guilty. But if the offense. stipulated He further to the testi- rights, officers did violate his then he mony of other witnesses which related to punishment. not receive the the seized evidence. These stipulations were admitted before the trial court. The issue, If we review the search and seizure record reflects that appellant’s plea and the we would still reach the same result. stipulations were knowingly and voluntarily the instant the officer that he testified given. phone received a call from an informant *5 personally pro- involved a that he knew and who had en- tered after a motion to vided him with reliable suppress evidence information pursuant seized past. to a search warrant was The information received from the overruled. The judicially defendant con- informant was that a the name person by fessed, but none of the evidence Guy obtained as seen Morgan person was to have on his a result of the search warrant was intro- a small amount of methamphetamine, and duced. The Court of Criminal Appeals held going place to be at a known as the judicial that the confession was alone suffi- time, Doll period House for a short in- cient to sustain the Haney, conviction. tending try methampheta- to sell some the issue was: where appellant has entered mine there. He would operating green be a valid offense, confession to the four door sedan that was an older model can the introduction of evi- illegally seized Chrysler that would be backed in a parked dence in the guilty plea hearing be reversi- particular area of the parking lot. The ble error? The court concluded that they officers testified that did not have judicial confession was sufficient to support Though time to secure a search warrant. the guilty plea without reference to the the officers did not a description receive alleged contraband improperly be admit- from their iden- appellant, they learned judgment ted. The of conviction was also tification section that an individual by affirmed. In both Ferguson and name Guy Morgan previously had court did not reach the issue of the validity “handled” on a narcotics case. They of the search and seizure though preserved a picture particular subject obtained of that under article 44.02. and took it with them to the scene. They

If we green follow observed an older model Haney, factually four door present case, identical to our we Chrysler sedan the manner de- parked in provides: by prose- Tex.Code Crim.Proc.Ann. art. agreed to the defendant and his cutor and A criminal action has the attorney may prosecute appeal, his he must right under the rules hereinafter court, except permission of the trial prescribed, however, provided, before the de- which have been raised those matters fendant who has been convicted either ñled to trial. This arti- written motion or of nolo contendere way appeals effects court, cle in no before the court and the chapter. [Emphasis sup- punish- article 44.17 of this election of the assesses plied.] ment and the not exceed does

scribed outside the Doll House. Shortly matching picture

thereafter a person they had towards the car obtained came stopped approached it. The officers

the individual and asked him who he was.

Upon learning Morgan, that he placed officers him arrest and searched him. The all officers verified

of the supplied critical facts which had been prior making the ar- informant Considering totality

rest. of the cir- cumstances, probable the officers had cause Draper

at the they moment acted. Unit- States, ed 358 U.S. 79 S.Ct. - Gates, (1959); L.Ed.2d Illinois v. -, 76 L.Ed.2d U.S. S.Ct. (1983). and seizure

I would review the search article 44.02 question contemplated by and affirm the of conviction on that basis.2 TINDAL, as

Herbert Guardian *6 Mary Estate Person of Tindal Clore, N.C.M., Appellant, Texas, By Acting The STATE of Through DEPARTMENT the TEXAS HEALTH AND MENTAL

OF MENTAL RETARDATION, Appellee.

No. 04-82-00138-CV. Antonio.

San June 1983. entering voluntarily a opinion on the “con- Justice is based Cantu’s pre- wanting 44.02 review of plea theory”. while Wooten ditional If the defendant admitted (Tex.Cr.App.1981). trial motion. The Court S.W.2d 561 formality, guilt underpinnings result with sufficient Appeals has Criminal cut everyone agreed to. applies the conviction reversal of progeny it to a from Wooten its guilty but following overruling If the defendant of a confession, convic- then his avoided a Martin speedy trial motion. sup- though less evidence tion affirmed (Tex.Cr.App.1983). The condition- S.W.2d 777 more make ported it. theory followed here al not be anomaly sense. other created the reasons. It