Wilson v. StateWilson v. State
- Reporters:
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- Before:
- Pressler
Lead Opinion
OPINION
ELLIS, Justice.Appellant entered a plea of guilty before the court to the offense of possession of marihuana.
Appellant raises a single point of error, contending that the trial court erred in denying his motion to suppress evidence. We do not reach the merits of appellant’s point of error, finding that he failed to preserve error.
Appellant’s notice of appeal fails to comply with
Such notice shall be sufficient if it shows the desire of the defendant to appeal ... but if the judgment was rendered upon his plea of guilty or nolo contendere ..., and the punishment assessed does not exceed the punishment recommended by the prosecutor and agrеed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to *702entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial. (Emphasis added.)
The record in the instant case reveals that appellant’s plea of guilty was entered pursuant to a plea bargain agreement. The trial court assessed the punishment agreed to by the parties. The notice of appeal, however, fails to state either that the trial court granted permission to appeal or that the subject matter of the appeal was raised by written mоtion and ruled on before trial.
Failure to comply with the requirements of
We hold, therefore, that appellant failed to preserve any error relative to the trial court’s overruling of his motion to suppress evidence and we are unable to consider his first point of error on the merits.
In a response brief, appellant contends that, in the event this court is unable to reach the merits of appellant’s point of error, then his plea is rendered involuntary. That is so, appellant asserts, because his plea of guilty was explicitly conditioned on his right to appeal the denial of his motion to suppress evidence.
The contention that appellant’s plea of guilty is involuntary if this Court fails to address the merits of his motion to’ suppress, differs from the one raised in his original brief and, therefore, constitutes an additional point of error. A point of error raised for the first time in a supplemental brief is not properly presented for appellate review. Rochelle v. State, 791 S.W.2d 121, 124 (Tex.Crim.App.1990); Coleman v. State, 632 S.W.2d 616, 619 (Tex.Crim.App.1982).
We note, however, that even if we address the substance of this argumеnt, we find it is without merit. To support his position, appellant cites two opinions from our sister courts of appeals: Collins v. State, 795 S.W.2d 777 (Tex.App. — Austin 1990, no pet.); and Lemmons v. State, 796 S.W.2d 572 (Tex.App. — San Antonio 1990, pet. granted). Both decisions held the pleas of the defendants were involuntary, relying on the Court of Criminal Appeals’ decisions in Broddus v. State, 693 S.W.2d 459 (Tex.Crim.App.1985); and Christal v. State, 692 S.W.2d 656, 658 (Tex.Crim.App. [Panel Op.] 1981). Both Broddus and Christal are inapposite to the instant situation, however. The distinguishing feature of those cases is that they invоlve pleas of guilty and nolo contendere where there were no plea bargain agreements. 693 S.W.2d at 461; 692 S.W.2d at 659. Because there is no right to appeal nonjuris-dictional issues where a plea of guilty or nolo contendere is entered without an agreed punishment recommendation, the pleas were rendered involuntary when the trial court encouraged the belief that appeal of such issuеs was in order.
The instant case presents a very different picture. Pleading guilty pursuant to a plea bargain agreement, appellant had a right at the time of entering his plea to appeal the ruling on his pretrial motion to suppress evidence.
*703In both Broddus and Christal the trial court actively encouraged the misapprehension on the part of the defendants that they could obtain substantive review of their pretrial motions. 693 S.W.2d at 462; 692 S.W.2d at 659. In fact, however, neither defendant was entitled to such review, since their pleas were entered without agreed punishment recommendations.
In the instant case, there was nothing to prevent substantive review of the ruling on appellant’s pretrial motion to suppress evidence at the time when he entered his plea of guilty. It would have been impossible, then, for the trial court to create a false impression appellant had such a right, since, in fact, he did have the right to appeal the trial court’s ruling on his motion to suppress. It would have required prescience to an unusual degree on the part of the trial judge for him to have foreseen that appellant’s counsel would fail to comply with
Accordingly, we affirm the judgment of the trial court.
Dissenting Opinion
dissenting.
Finding myself in disagreement with the majority members of the panel, I record my respectful dissent.
Appellant Wallacе Wilson, was charged with the misdemeanor offense of possession of marijuana under two ounces. Prior *704to trial, appellant filed a written motion to suppress the evidence claiming violations of search and seizure laws. The trial court denied appellant’s motion. Appellant entered into a plea bargain with the State and pled guilty, reserving his right to appeal the trial court’s denial of his motion to suppress the evidence as part of the written plea agreement. Appellant timely filed written notice of appeal. Because this was a misdemeanor plea of guilty, not a felony plea pursuant to Article 1.15, Code of Criminal Procedure, the notice of appeal stated appellant’s desire to appeal the judgment of the trial court. The notice of appeal did not state that the trial court granted permission to appeal or specify that the motion to suppress was raised by written motion and ruled on before trial. I find nothing in Texas Appellate
The majority opinion holds that appellant’s notice of appeal failed to comply with Texas Rules of Appellate Procedure 40(b)(1) and therefore did not preserve any nonjurisdictional defects for appeal. In so holding, the majority misconstrued the plain language of
Rule 40(b)(1) , Rules of Appellate Procedure
Appeal is perfected in a criminal case by giving timely notice of aрpeal; except, it is unnecessary to give notice of appeal in death penalty cases. Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plеa the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial. The clerk of the trial court shall note on copies of the notice of appeal the number of the cause and the day that notice was filed, and shall immediately send one copy to the clerk of the appropriate court of appeals and one copy to the attorney for the State.
Jury in Felony Article 1.15, Code of Criminal Procedure
No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficiеnt evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony b affidavits, written statements of witnesses, an any other documentary court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.
*705The interpretation of Appellate
The majority cites Jones v. State, 796 S.W.2d 183 (Tex.Crim.App.1980) as authority that failure to comply with
In the panel’s original opinion,
This Court in Salazar v. State, 773 S.W.2d 34 (Tex.App. — Houston [14th Dist.] 1989, no pet.) discusses the repeal of Artiсle 44.02 and concludes that the limitation on the right to appeal in plea bargained cases applies to felony pleas only.
The emphasized language of the Rule, like the provision of former Article 44.02 on which the States relies here, limits the right of appeal in a plea bargained case. While the limiting language is quite similar to the proviso of former Artiсle 44.-02, the face ofRule 40(b)(1) shows that it applies only to pleas of guilty or nolo contendere pursuant to Article 1.15. Code of Criminal Procedure, which, in turn, applies only to a felony case. Accordingly, the limitation ofRule 40(b)(1) does not affect appellant’s right to appeal his misdemeanor conviction. Under the circumstances, appellant’s notice of аppeal, filed pursuant toRule 40(b)(1) , together with the remaining language ofTex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1979 & Supp.1989), vest this court with jurisdiction to review his appeal from denial of his motion to suppress. Our sister court reached a similar conclusion in Yates v. State, 759 S.W.2d 949 (Tex.App. — Dallas 1988), no pet.).
Yates, supra, reached the same conclusion regarding the portion of
Rule 40(b)(1) of the Rules of Appellate Procedure governs the means by which an appеllant must perfect a criminal appeal. In pertinent part, the rule reads as follows:
If the judgment was rendered on his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for а nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial.
Article 1.15 of the Code of Criminal Procedure specifies some of the prerequisites for conviction in fеlony cases. Appellant was convicted of illegal possession of a firearm, a misdemeanor. Thus, the proviso of rule 40(b)(1) has no application to this case, and appellant’s notice of appeal is sufficient to vest this Court with jurisdiction.
Justice Hecht, writing in Studer v. State, 757 S.W.2d 107 (Tex.App. — Dallas 1988), *706discussed whether misdemeanor cases were covered by the restriction in then new
However, those restrictions in rule 40(b)(1) appear to apply only to pleas of guilty or nolo contendere under article 1.15 of the Texas Code of Criminal Procedure, which covers only felony cases. The argument can therefore be made that the limits on appeal after pleas of guilty and nolo contendere under rule 40(b)(1), unlike article 44.02, apply only to felony cases. Studer, supra at pg. 109, ftn. 1.
Thе Court of Criminal Appeals, in affirming, held that it was appellant’s failure to make a pre-trial objection to this misdemeanor plea that failed to preserve any non-jurisdictional error, not any defect in his notice of appeal of a misdemeanor. Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App.1990).
I find that
Further, two recent opinions by Courts of Aрpeals have reversed the judgments of the trial courts where appellant, the Court, and the State all understood that the plea was entered conditionally that appellant could appeal the denial of his suppression motion. See Collins v. State, 795 S.W.2d 777 (Tex.App. — Austin 1990); Lemmons v. State, 796 S.W.2d 572 (Tex.App. — San Antonio 1990), P.D.R. granted. In identical situations to that of appellant, the Courts reversed, holding such pleas to bе involuntary.
The record reveals that appeal of the motion to suppress ruling was contemplated in the plea bargain. In the Plea of Guilty form appellant, the State, and the trial court specifically acknowledged that the Motion to Suppress would be appealed pursuant to the plea bargain agreement. In part, the form states: “The Plеa of Guilty is conditioned on my right to appeal the denial of my motion to suppress to the Court of Appeals.” The record is clear that appeal of the motion to suppress ruling was contemplated in the plea bargain.
In Collins v. State, supra, the Court held that the rule in Helms v. State, 484 S.W.2d 925 (Tex.Crim.App.1972), applies with full force to misdemeanor pleas, barring review of nonjurisdictional defects, but under Broddus v. State, 693 S.W.2d 459 (Tex.Crim.App.1985), appellant’s plea was “conditional” and therefore involuntary. Applying Helms and Broddus to appellant’s situation, since it is clear appellant conditioned his plea of guilty on his right to appeal the ruling on his pretrial motion to suppress, I find that he entered his plea involuntarily.
I would grant the motion for rehearing and reverse the judgment of conviction and remand the cause tо the trial court for a new trial.
Lead Opinion
OPINION ON MOTION FOR REHEARING
JUNELL, Justice.In his motion for rehearing, appellant contends that the court’s holding in this cause constitutes a repudiation of Salazar v. State, 773 S.W.2d 34 (Tex.App. — Houston [14th Dist.] 1989, no pet.).
The Salazar opinion pre-dates Jones v. State, 796 S.W.2d 183 (Tex.Crim.App.1990), in which the court of criminal appeals held lack of compliance with
As the dissenting opinion of Chief Justice Brown points out in Salazar, there is a conflict between the various courts of appeals (and in one instance in opinions from the same court of appeals) concerning the applicability of
This is obviously a situation where guidanсe is desirable from the court of criminal appeals to resolve the conflict in interpretations of the language of
We overrule appellant’s motion for rehearing.
Notes
. The Austin Court of Appeals held in Collins v. State, 795 S.W.2d 777 (Tex.App. — Austin 1990, no pet.), that the rule of Helms v. State, 484 S.W.2d 925 (Tex.Crim.App.1972), applies with full force to misdemeanor pleas, barring review of nоnjurisdictional defects. Justice Gammage then took the analysis a step further, deciding that, under Broddus v. State, 693 S.W.2d 459 (Tex.Crim.App.1985), the appellant’s plea was “conditional” and, therefore, involuntary. 795 S.W.2d at 778. Were we to apply Helms and Broddus to the instant situation, since it is clear appellant conditioned his plea of guilty on his right to appeal the ruling on his pretrial motion to suppress, we would be forced to find his plea was thereby rendered involuntary.