*2 PRESSLER, JUNELL and Before PAUL ELLIS, JJ.
OPINION
ELLIS, Justice. entered before possession of the court to the offense of Safety Code marihuana. Tex.Health & 481.121(b)(1). He was convicted Ann. § con- and the court assessed days four finement for the Harris Coun- fine ty and a affirm. $300.00. Jail error, single point Appellant raises a contending that trial court erred denying his motion reach We do not the merits error, finding failed preserve error. fails com- Appellant’s Tex.R.App.P. 40(b)(1), pro-
ply with vides: if shall be sufficient it shows
Such notice appeal ... desire of the defendant to but ..., contendere or nolo punishment assessed does punishment recommended
exceed the
de-
fendant and his
order
nonjurisdiction-
al defect or error
occurred
supplеmental
time in a
the notice shall state
raised for the first
appel
properly presented
is not
brief
State, 791 S.W.2d
those
late review. Rochelle v.
matters were raised
Coleman v.
written motion
(Tex.Crim.App.
(Emphasis
and ruled
trial.
before
added.)
1982).
*3
The record in the instant case reveals
note, however,
We
that even we
guilty
was entered
argument,
of this
we
address the substance
plea bargain agreement.
to a
support his
find it is without merit. To
The trial court
assessed
position, appellant
opinions
cites two
from
parties.
The notice of
appeals:
our sister courts of
Collins
however,
appeal,
fails to state either that
State,
1990,
pet.);
аnd Lemmons v.
796
subject
or that the
matter of the
1990,
Antonio
—San
was raised written motion and ruled on pet. granted).
held the
Both decisions
before trial.
pleas
involuntary,
of the defendants were
relying
Appeals’
on the Court of Criminal
comply
Failure to
with the re
decisions Broddus v.
quirements of Rule
results in a
459
and Christal v.
preserve any nonjurisdictional
failurе “to
656,
(Tex.Crim.App.
658
S.W.2d
appeal.”
defects for ...
Jones
1981).
Op.]
Both Broddus and
[Panel
(Tex.Crim.App.1990).
S.W.2d
inapposite
Christal are
to the instant situa
is,
reviewing
acquires
while the
court
That
tion,
distinguishing
however. The
feature
jurisdiction
appeal by
bare
over the
virtue
they
pleas
of those cases is that
involve
faulty
appeal,
appellate
guilty and nolo contendere where there
court
not entertain issues that are
plea bargain agreements.
were no
nonjurisdictional in nature. 796
at
S.W.2d
461;
additional
appeals
of criminal
held
the trial
which the court
both Broddus and Christal
Tex.R.App.P.
compliance with
lack of
actively encouraged
misappre-
preserve
“to
results in
failure
part
hension on the
of the defendants
defects
...
they could obtain substantive review
Although
at 186.
peal.” 796 S.W.2d
462;
pretrial
at
their
motions. 693 S.W.2d
offense,
to a
involved
fact, however,
suppress the claiming order; evidence appealable violations or other but of search and seizure laws. judgment The trial court denied motion. en- or nolo сontendere plea bargain tered into a with the State and Procedure, Code of Criminal pled guilty, reserving appeal punishment assessed does not the trial court’s denial of his motion exceed the by recommended part evidence as of the writ- the de- plea agreement. ten Appellant timely filed fendant and his in order to written appeal. notice of Because this was appeal nonjurisdiction- for a misdemeanor guilty, not a al defect or error that occurred plea pursuant to Article Code of Crim- the notice shall state inal appeal stated that the trial court desire to specify that those matters of the trial court. The notice of did were raised written motion and ruled not state that the granted per- on before trial. The clerk of the trial mission to that the motion copies court shall note on of the notice of was raised written motion number the cause and the nothing ruled on before trial. I find day filed, that notice was and shall imme- Apрellate Texas requiring Rule diately send copy one to the clerk of the such notice in of a appropriate appeals court of and one case. copy attorney for the State. *5 majority opinion
The holds that lant’s comply notice of failed to with Jury in Felony Article Code Appellate Texas Rules of Procedure of Criminal Procedure 40(b)(1)and preserve any therefore did not person No can be felony convicted of a appeal. defects for In so except upon the jury duly verdict of a holding, the majority misconstrued the recorded, rendered and felony unless in plain language 40(b)(1) of Rule because the capital, defendant, cases less than face of the Rule shows that the additional upon entering plea, in open has court in requirements applies in the notice only to person by jury waived his of trial in felony guilty or pleas. nolo contendere writing in accordance with Articles 1.13 majority previ- The also failed to follow a 1.14; howevеr, provided, that it shall opinion ous of this Court that the necessary be for the state to introduce 40(b)(1)clearly limitations of apply do not evidence showing into the record to misdemeanor cases. See Salazar v. guilt of the defendant and said evidence —Hous- accepted shall be the court as the pet.). ton no [14th Dist.] judgmеnt basis for its and in no event 40(b)(1)places Rule person charged shall a be convicted in additional elements the notice of without sufficient evidence to non-felony pleas guilty or nolo con- support the same. The evidence be tendere. stipulated if the defendant in such case court, writing, open consents in in 40(b)(1), Apрellate
Rule Rules of confrontation, appearance, waive the Procedure witnesses, cross-examination of and fur- Appeal perfected is in a criminal case stipulation ther consents either to an oral giving timely appeal; except, notice of it testimony of the evidence and affida- b vits, unnеcessary give witnesses, notice of in written statements of an penalty documentary death cases. Notice of other court. Such given writing in approved by shall be filed with the waiver and consent must be writing, clerk of the trial court. Such notice shall in the court and be filed in the papers sufficient if it be shows desire of file of the of the сause. nolo pleas of applies only to Rule Appellate interpretation The 1.15. pursuant to Article importance. contendere 40(b)(1) great issue of is an which, Procedure, Code Criminal interpretation must be based Such turn, felony case. Ac- applies only language Rule. 40(b)(1) of Rule cordingly, the limitation cites Jones v. mаjority not affect does (Tex.Crim.App.1980) as authori- conviction. Under peal his misdemeanor comply failure to Rule ty that with circumstances, preserve any nonjuris- results failure pursuant to Rule appeal, filed felony involved a dictional defects. language of together remaining with the plea, majority misdemeanor. (Ver- art. 44.02 Tеx.Code Crim.Proc.Ann. authority Rule cites no to extend Supp.1989), vest this non 1979 & pleas. limitation jurisdiction original panel’s opinion, In Rule of his motion to from denial 40(b)(1) is What the restatement restated. reached a conclu- Our sister court similar completely of the Rule omits after Yates v. sion in phrase line nolo contendere ... on three рet.). —Dallas this: to Article Code of Yates, supra, reached the same conclu- Procedure, line is ... When this Criminal portion of regarding the Rule sion added, changes it the whole mandate contention that the answering In the same Rule, ie.,: applies it limitation of the notice was defective or nolo contendere pointed out: “pursuant to Article 1.15. Code of Crimi- Appellate Rule of the Rules of which, turn, applies only nal Procedure” governs Procedure the means dealing to a case. This Court perfect must appeal and the first with a misdemeanor pertinent part, the rule reads as peal. 40(b)(1) governs portion of Rule all non- follows: languagе pleas. former of Tex- If as Code of Criminal pur-
44.02 authorized review of the merits of or nolo contendere *6 1.15, of to Article suant to Article Code Criminal appellant’s motion plea the recom- 44.02 that where there and stated it, by bargain, and the court follows the mended the and only get permission by to the defendant and his lant neеd the mat- appeal for appealed not raised in order to ters to be were Here, prior nonjurisdictional to error motion filed trial. defect or written plea to the appellant met exact criteria occurred shall state that and did not fall under the notice notice 40(b)(1), granted permission appеal of Rule this to because plea felony. those matters were raised not a was motion and ruled on before written State, Salazar v. This trial. S.W.2d [14th Dist.] —Houston of Pro- Article 1.15 the Code Criminal pet.) repeal discusses the of Arti- prerequi- specifies some of cedure and concludes that the limitation cle 44.02 Ap- felony for conviсtion in cases. sites plea bargained appeal on the pellant illegal posses- was convicted only. applies pleas cases Thus, firearm, a misdemeanor. sion of a Rule, emphasized language 40(b)(1) appli- proviso of rule has no provision like of former Article 44.02 case, notice cation to this hеre, the States relies limits appeal is sufficient to vest this Court plea bargained in a case. appeal jurisdiction. quite sim- limiting language While Studer v. Hecht, writing in 44.- proviso ilar former Article Justice shows that it the face Rule —Dallas discussed whether Guilty my right ap- misdemeanor cases were is conditioned on covered peal my restriction in then new Rule the denial motion to The record Appeals.” to the Court However, clear that of the motion those restrictions in rule contemplated in the bar- appear apply only gain.
guilty or nolo contendere under article 1.15 of the Texas Code of Criminal Proce supra, Collins dure, only felony which covers сases. held that the rule in Helms v. argument can therefore be made (Tex.Crim.App.1972), applies the limits on after pleas, with full force to misdemeanor bar- guilty and nolo contendere under rule ring defects, review of unlike apply only article but under Broddus v. 693 Studer, supra pg. 109, cases. (Tex.Crim.App.1985), ftn. 1. “conditional” therefore involun- Appeаls, Court of Criminal in affirm tary. Applying Helms and Broddus ing, held that it was failure to situation, pellant’s appellant since it is clear pre-trial objection make a to this misde conditioned his on his preserve meanor that failed any non-jurisdictional error, defect in suppress, I find that he entered his his notice of of a misdemeanor. involuntarily. Studer v. I grant would rehearing motion for and reverse the of conviction and I find that Rule does not read to remand the cause to the trial court require that notice of in misdemean- new trial. plea bargained cases contain the addi- requirements governing tional felony pleas Therefore, appel- to Article 1.15. propеrly gave
lant sufficient peal argue of error and there
was no defect of said notice of be- plea. cause this was a misdemeanor Further, opinions by two recent Courts JOLIVET, Appellant, Michael judgments have reversed the appellant, Court, the trial courts where and the State all understood that the Texas, Appellee. The STATE of conditionally was entered 05-89-01451, Nos. 05-89-01452-CR. *7 suрpression could the denial of his motion. Texas, See Collins v. 1990); Lemmons v. Dallas. An- —San June granted. tonio P.D.R. In identical appellant, situations to that of the Courts
reversed, holding to be involun- tary.
The record reveals that suppress ruling was contem- plated plea bargain. in the In the Plea of appellant,
Guilty form acknowledged specifically Suppress appealed the Motion to would be plea bargain agreement. part, the form states: “The Plea of