Dees v. State

• Decision Date: 19 September 1984
• Docket Number: No. 1102-83,1102-83
• Parties: Roy Allen DEES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 403

676 S.W.2d 403

Roy Allen DEES, Appellant, v. The STATE of Texas, Appellee.

No. 1102-83.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 19, 1984.

Ray Bass, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Don Clemmer and Robin Franklin, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Alfred Walker, First Asst. State's Atty., and Cathleen Riedel, Asst. State's Atty., Austin, for the State.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

The record reflects that after Roy Allen Dees, appellant, entered a plea of nolo contendere, he was convicted in the trial court of unlawful possession of less than two ounces of marihuana. Punishment was assessed by the trial judge at confinement in the Harris County Jail for three (3) days and a fine of $200.

The record also reflects that prior to trial appellant filed a motion to dismiss the complaint and information on the ground that his right to a speedy trial, guaranteed by the provisions of Art. 32A.02, V.A.C.C.P., (The Speedy Trial Act), had been violated. The trial judge held a hearing on the motion, after which he denied the motion. Thereafter, at an unknown time on the same day, appellant entered a plea of nolo contendere, after which the trial judge assessed the above punishment.

Appellant appealed his conviction to the Fourteenth Court of Appeals, and that court, in a unanimous opinion by Justice Robertson, agreed with appellant that he had been denied his right to a speedy trial and ordered the trial court to dismiss the complaint and information. Dees v. State, S.W.2d (Tex.App.-Houston [14th] 1983). We granted the State's petition for discretionary review in order to make the determination whether the court of appeals correctly disposed of the case. We find it did not.

We first observe that although the record of appeal contains a transcription of the hearing that was held on appellant's motion to dismiss, it does not contain a transcription of the proceedings when appellant entered his plea of nolo contendere. The record is also silent as to whether the plea of nolo contendere appellant entered might have been made pursuant to some type of plea bargain agreement. Cf. Art. 44.02, V.A.C.C.P. There is also not anything in the record of appeal that might reflect or indicate that when appellant entered his plea of nolo contendere he was not waiving his right to complain on appeal about the trial judge's denying his motion to dismiss.

Article 27.02 (5), V.A.C.C.P., expressly provides: "A plea of nolo contendere, the legal effect of which shall be the same as that of a plea of guilty, except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based."

It is well settled that when a defendant, who is charged with committing a misdemeanor offense, pleads guilty or nolo contendere to the charge, such plea constitutes an admission to every element of the charged offense. Thus, in a misdemeanor case, such a plea is conclusive of the defendant's guilt. It is also well settled that in that instance it is only when the defendant has satisfied the provisions of Art. 44.02, supra, that he may complain on appeal of rulings on pretrial motions. See Isam v. State, 582 S.W.2d 441 (Tex.Cr.App.1979), and Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983).

We have carefully reviewed the record for any evidence that might reflect that appellant's plea of nolo contendere was made with the understanding that he was not waiving for appellate review purposes the adverse ruling of the trial court on his motion to dismiss for failure of the State to comply with the Speedy Trial Act. We have also reviewed the record for evidence that might reflect a plea bargain agreement which would have permitted us to invoke and apply to this case the provisions of Art. 44.02, supra. Our search on both counts has been fruitless. We have also reviewed the record to see if there are any jurisdictional defects in the conviction, but have found none. Our research has yet to reveal any case which has held that the denial of a speedy trial or a violation of the Speedy Trial Act constituted a jurisdictional defect. To the contrary, our research has revealed that such is non-jurisdictional. See Bond, Plea Bargaining & Guilty Pleas, Section 7.21 [d] (1978 Edition). Nor have we found any error that could be considered by this Court in the interest of justice. ¹

We find and hold that appellant has simply failed to preserve for appellate review his ground of error that related to the trial court's denying his motion to dismiss because of the State's failure to comply with the provisions of the Speedy Trial Act.

The court of appeals erred in considering the issue.

The State's petition for discretionary review is granted. The judgment of the court of appeals is reversed and the judgment of conviction affirmed.

W. C. DAVIS, TOM G. DAVIS, and CAMPBELL, JJ., concurred in result.

ONION, P.J., and MILLER and ODOM JJ., dissent.

CLINTON, Judge, dissenting.

The opinion of the Court is wrong. Having granted review at the instance of the State, represented by the State Prosecuting Attorney, the Court does not address a single one of the four questions presented for review. Rather, it approaches the cause as if appellant brought it here on direct appeal. Basically, therein lies the essential fault of the majority opinion. But there are others.

The court of appeals did not find that appellant "had been denied his right to a speedy trial," nor did this Court grant review to determine whether the court of appeals "correctly disposed of the case." ¹ What the record does not show is completely beside any point raised by the State, and to conjure up negatives is truly an exercise in oneupmanship.

It is certainly correct to say that a plea of nolo contendere in a misdemeanor case "constitutes an admission to every element of the charged offense," leaving to the judge of the trial court a discretion to assess punishment with or without evidence under Article 27.14(a), V.A.C.C.P., but it does not follow that appellant was precluded from complaining on direct appeal to the court of appeals that the trial court erred in denying his motion to set aside the information for failure of the State to comply with requirements of the Texas Speedy Trial Act, Article 32A.02, V.A.C.C.P.

Though it does not explain its rationale, by citing Isam v. State, 582 S.W.2d 441 (Tex.Cr.App.1979), and Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983), the majority expresses the view that appellant has not "satisfied the provisions of Art. 44.02, [V.A.C.C.P.]," and then presumably undertakes to support that view by reporting in the next paragraph what it has not found in the record.

That done, the majority concludes that "appellant has simply failed to preserve for appellate review" the complaint he makes; ergo, the court of appeals "erred in considering the issue."

The supreme irony in what the majority has accomplished is that the analysis by which the court of appeals came to its conclusion in a published opinion remains unscathed, though review was granted to decide whether the analysis is correct. At once the State loses on its petition for discretionary review to have the issue decided but has the consolation of winning on the judgment of conviction. The courts of appeals, the bench and bar are left to wonder whether the issue was correctly resolved.

As the majority sees the problem, the court of appeals "erred in considering the issue," because appellant "failed to preserve [it] for appellate review." Yet, appellant prepared and filed his motion to dismiss, presented it to the trial court and, with the State, adduced evidence at a hearing conducted by the trial court; after the court denied his motion appellant gave notice of appeal, and properly perfected it to the court of appeals. Any defect in preserving the issue for appellate review is not apparent from the record, the State has not claimed one and the majority does not point one out.

"Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute. Jurisdiction of an appellate court in Texas is invoked in a criminal case by giving notice of appeal against a judgment of the trial court pursuant to Article 44.08, V.A.C.C.P." Carter v. State, 656 S.W.2d 468, 469 (Tex.Cr.App.1983). Certainly the State has never asserted a lack of jurisdiction, so there is no issue about it. And, as I understand the majority opinion, that the Houston (14th) Court of Appeals did acquire jurisdiction of the cause is accepted by this Court. Given it had jurisdiction, the court of appeals clearly possessed power and authority to consider and to rule on appellant's sole ground of error.

Instead of appellant's failing to preserve the issue for appellate review, what the majority seems to be driving at is that having pleaded nolo contendere to a misdemeanor offense, in order to complain on appeal of the adverse ruling on his pretrial motion to dismiss, appellant must "satisfy" Article 44.02, supra, by having the record on appeal show that a plea bargain agreement was honored by the trial court when it came to assess punishment. With deference, absent any plea bargain at all the proviso in Article 44.02 is not generated, so the right of an accused to appeal is granted under the initial clause of the article: "A defendant in any criminal action has the right to appeal under the rules hereinafter prescribed...," those rules being ones prescribed throughout Chapter 44 and elsewhere. What the majority really means is that an appellant may properly perfect his appeal, only to be told after submission that he had waived the ground of error by entering a plea of guilty or nolo contendere. In short, the majority is saying to the court of appeals that it...