Cleveland v. State, 62153

• Decision Date: 31 October 1979
• Docket Number: No. 1,No. 62153,62153,1
• Citation: 588 S.W.2d 942
• Parties: Oda Vaughn CLEVELAND, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 942

588 S.W.2d 942

Oda Vaughn CLEVELAND, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 62153.

Court of Criminal Appeals of Texas, Panel No. 1.

Oct. 31, 1979.

J. Thomas Sullivan, court appointed counsel on appeal only, Dallas, for appellant.

Henry Wade, Dist. Atty., Karen Chilton Beverly, G. J. Muller and Stewart Robinson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and DOUGLAS, and W. C. DAVIS, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for unlawful possession of a controlled substance, to-wit: heroin, wherein the punishment was assessed by the court at ten (10) years' imprisonment following his guilty plea.

Appellant contends the trial court erred in overruling his motion to suppress evidence of a search and seizure and in accepting his plea of guilty where the evidence disclosed an impropriety in the securing of the search warrant.

The record reflects that after the motion to suppress was overruled the appellant on November 13, 1978 entered a guilty plea before the court. It was established that there was no plea bargain and no recommendation was made to the court. Sentence was imposed and notice of appeal was given.

It has long been held that by entering a plea of guilty the defendant waives the error, if any, in admitting evidence obtained as a result of an alleged search and seizure. Helms v. State, 484 S.W.2d 925, 927 (Tex.Cr.App.1972), and cases cited. This rule has been applied to cases where pretrial motions to suppress have been overruled and the defendant later enters a plea of guilty.

Appellant relies upon Article 44.02, V.A.C.C.P., as amended 1977, in effect at the time of appellant's plea of guilty, which reads:

"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. Aug. 29, 1977.)

In Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978), it was held that a defendant who had personally entered into a plea bargain prior to his guilty plea before the court and whose punishment was assessed in accordance with said plea bargain could still appeal without the trial court's permission but only as to the matters raised by motions filed and heard prior to trial in light of the provisions of said Article 44.02.

Appellant therefore contends that the court's ruling on the motion to suppress in the instant case should be considered on appeal as Article 44.02, as amended 1977, indicates the legislative intent to "reverse" the line of cases represented by Helms v. State, Supra. We do not agree. 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 that 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.

Further, we note the contention now raised on appeal was not raised at the hearing on the motion to suppress or at the time of the guilty plea and would not normally present anything for review. It is appellant's contention that the copies of the search warrant attached to his motion to suppress and the one introduced by the State at the hearing on the motion to suppress, while identical in content, reflect that the copies were not made from the same original, as the signature of the magistrate on one protruded into and over the printed matter in one copy and did not in another, etc. He thus argues that there...