Galitz v. State

• Decision Date: 01 July 1981
• Docket Number: Nos. 66363,66364,s. 66363
• Citation: 617 S.W.2d 949
• Parties: Dennis Stanley GALITZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 949

617 S.W.2d 949

Dennis Stanley GALITZ, Appellant, v. The STATE of Texas, Appellee.

Nos. 66363, 66364.

Court of Criminal Appeals of Texas, En banc.

July 1, 1981.

Jack B. Zimmermann & Kevin Cunningham, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & Susan W. Crump & Ray Fuchs, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

CLINTON, Judge.

On original submission of these causes, appellant set forth in each a single ground of error contesting the legality of the search of his person and, ultimately, his apartment, which produced fruits, the possession of which comprised the forbidden conduct of which he was convicted. A panel of the Court, in a per curiam opinion, Tex.Cr.App., 613 S.W.2d 302, declined to reach the merits of the issue presented, determining respectively that evidence obtained independently of the search was introduced to support the conviction in Cause No. 66,363, and that appellant's failure to raise the search contention by written pretrial motion in Cause No. 66,364 constituted a forfeit of his right to appeal under the provisions of Article 44.02, V.A.C.C.P. Each case was tried upon appellant's plea of guilty. ¹

On careful consideration of the entire records in these causes, we are constrained to agree with appellant that the panel was in error on both counts and, thus, his motions for rehearing must impel an examination of the merits of his grounds.

The treatment of these causes by the panel on original submission, as well as the stout motion for rehearing assailing it, ² indicate a full discussion of the law governing the right of appeal in cases tried before the court upon a plea of guilty, which we now turn to undertake.

As was fully explained in Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980), unless the power or authority of a court to perform a contemplated act can be found in the Constitution of this State or laws enacted thereunder, that court is without "subject matter jurisdiction" to so perform. Thus the power of this Court to perform the contemplated act of considering an appeal from a criminal conviction obtained in a district court of this State is solely determined by legislative authorization; ³ in short, the right to appeal in this State is a statutory right. Ex parte Paprskar v. State, 573 S.W.2d 525 (Tex.Cr.App.1978); Savage v. State, 237 S.W.2d 315 (Tex.Cr.App.1950).

And so it was until 1977 that "a defendant in any criminal action (had) the right to appeal...." Article 44.02, V.A.C.C.P. But then this broad grant of the right to appeal was narrowed as regards would-be appellants who choose to enter pleas of guilty before the trial court and are sentenced within the terms of a plea bargaining agreement; for them new jurisdictional requisites were established by amendment, effective August 29, 1977:

"A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided however, before a 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." ⁴

Thus the statute presently in effect places a burden on one who would appeal from a negotiated proceeding before the court to make manifest upon the record the following requisites in order to invoke the jurisdiction of this Court under the proviso: (1) existence of a plea bargaining agreement with the State; ⁵ (2) punishment assessed by the trial court at or within that recommended by the prosecutor ⁶ and agreed to personally by the defendant; ⁷ (3) the basis of the appellate ground of error has been presented in writing, pretrial, to the trial court for consideration OR the trial court has given permission to pursue an appeal in general or upon specific contentions. Absent the showing of all three of these jurisdictional requisites there is no power extant in this Court to take cognizance of issues "appealed" by appellants so situated. Haney v. State, 588 S.W.2d 913 (Tex.Cr.App.1979); Mitchell v. State, 586 S.W.2d 491 (Tex.Cr.App.1979); Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1979).

So in the jurisdictional sense, the present version of Article 44.02 restricts the previously unfettered appellate right of the instant class of appellants; ⁸ but, as a matter of appellate constraints, that appellate right has been liberalized by the amendment. For example, a rule previously applicable was as stated in Helms v. State, 484 S.W.2d 925, 927 (Tex.Cr.App.1972):

"When a plea of guilty is voluntarily and understandingly made, all nonjurisdictional defects including claimed deprivation of federal due process are waived. Soto v. State, Tex.Cr.App., 456 S.W.2d 389; Fierro v. State, Tex.Cr.App., 437 S.W.2d 833." ⁹

See also Isam v. State, 582 S.W.2d 441 (Tex.Cr.App.1979), (holding Article 44.02, supra, abrogates former rule applied in pleas to misdemeanors).

Thus, the changes wrought by the 1977 amendment to Article 44.02, supra, touch appellate jurisdiction and, by operation thereof, some principles of appellate procedure; nothing more. And certainly, the amendment in no way serves to alter rules of evidence, or the constitutional doctrine of harmless error.

Indeed, applying settled principles to cases appealed under the Article 44.02 proviso, this Court has held that evidence derived from a contested search and seizure which is not introduced by the State to meet its burden to support the conviction on a plea with sufficient evidence, cannot form the basis for a reversal on appeal, notwithstanding an erroneous ruling on its admissibility by the trial court. Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980); Mitchell, supra; Ferguson, supra. ¹⁰

Similarly, the principle of "harmless error" has been applied to cases before us pursuant to the proviso: Ferguson, supra, at 910, determined that any erroneous ruling made on a pretrial motion to suppress will not vitiate the conviction, if the plea of guilty is supported by evidence "independent of the matter contested in the pretrial motion." See also Brewster, supra; Roberts v. State, 587 S.W.2d 724 (Tex.Cr.App.1979); Mitchell, supra.

The latter rationale involved in Ferguson, supra, was more fully explicated in Haney v. State, 588 S.W.2d 913, 914-915 (Tex.Cr.App.1979): "If lawfully obtained evidence of guilt is overwhelming, any constitutional error will generally be considered harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). This doctrine has been specifically applied to the introduction of wrongfully obtained evidence. E. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976). * * * It is difficult to imagine any evidence of guilt that could be more overwhelming than a voluntary admission by the accused on the stand, after full warning by the trial court, that he committed the offense as charged. In the absence of any evidence that undermines or conflicts with the credibility of such an admission, a judicial confession will nullify the prejudicial effect of the introduction of illegally obtained evidence in the guilty plea hearing." ¹¹

Turning to the instant case, the record reflects that on November 15, 1979, an examining trial was conducted in the felony case, at which time the State called Houston police officers P. A. Brooks and Sergeant M. J. Tarver. Briefly, the officers testified that pursuant to information received from an unidentified informant, they sought and found appellant in the late hours of November 1, 1979 at the Jesse James Club, an establishment licensed to sell alcoholic beverages. They identified themselves and requested that appellant step outside to talk, which he did. As the men descended stairs outside the club, Brooks observed a pistol through the slit in the back of appellant's jacket. At the bottom of the stairs, Brooks seized the weapon and placed appellant under arrest for "carrying a pistol." Appellant was taken to Officer Brooks' office and warned of his rights. Thereafter, he signed a written consent to search his apartment, and sometime after 2:30 a. m. Brooks and appellant proceeded to the apartment where a search produced a quantity of marihuana.

On November 26, 1979, an indictment was filed, charging appellant with "carrying a weapon on liquor licensed premise." The next day appellant was likewise charged by indictment, with possession of marihuana.

Thereafter, appellant filed his motion to suppress in the felony case, requesting the trial court to "suppress for all purposes evidence concerning the search of his person and the seizure therefrom of said weapon, possession of which forms the basis of this prosecution." And on April 2, 1980, a hearing was convened on the motion to suppress; at this time, the transcription of the court reporter's notes of the November 15 examining trial testimony was introduced as Defense Exhibit No. 1 by agreement of the parties. After hearing argument, the trial court overruled the motion to suppress.

Immediately thereafter, defense counsel advised the court that the parties were ready to proceed to disposition of the felony cause on the merits, then stated,

"We would urge the Court at this time to permit the defendant in ... No. 305,877, ¹² styled The State of Texas vs. Dennis Galitz, which was a related charge in which ... the search issue stems from the same issue the Court has just denied ... to enter a plea to that and at the same time preserving...