Killebrew v. State, s. 43545
| Decision Date | 24 March 1971 |
| Docket Number | Nos. 43545,s. 43545 |
| Citation | 464 S.W.2d 838 |
| Parties | Patrick KILLEBREW and Michael Killebrew, Appellants, v. The STATE of Texas, Appellee. & 43546. |
| Court | Texas Court of Criminal Appeals |
Sam Houston Clinton, Jr., of Clinton & Richards, Austin, for appellants.
Robert O. Smith, Dist. Atty., Lawrence Wells, Asst. Dist. Atty., and Jim D. Vollers, State's Atty., Austin, for the State.
These appeals arise from convictions for possession of marihuana following pleas of nolo contendere before the court. The punishment in each case was five years, but the imposition of the sentences was suspended and the appellants were placed on probation.
The appellants, who are brothers, were jointly indicted and jointly tried. The separate appeals have been consolidated for the purpose of disposition.
When originally arraigned the appellants entered pleas of not guilty.
Thereafter their attorney filed a motion to suppress the evidence alleging their arrest was without probable cause and that the search was illegal and the fruits of the search were inadmissible and should be suppressed.
After hearing the evidence on the motion to suppress, the trial judge overruled the motion. Thereafter the appellants requested that the jury assess punishment upon any finding of guilt. See Article 37.07, Vernon's Ann.C.C.P. On the same date, however, appellants' pleas of not guilty were withdrawn, a jury waived, and pleas of nolo contendere before the court were entered 'subject to' their exception to the court's ruling on the motion to suppress. It is clear that the pleas were entered with the understanding that appellants were not waiving but preserving their right to appeal the ruling on the motion to suppress.
The stipulations subsequently entered were made with the same reservation and subject to the objection and exception made on the motion to suppress. The objection was again overruled and the appellants were found guilty upon their pleas of nolo contendere.
Thereafter the appellants gave timely notice of appeal.
On appeal the appellants seek to raise the same contentions urged on the motion to suppress.
As in Chavarria v. State, 425 S.W.2d 822, this court is confronted with the question of whether a trial court is authorized to accept pleas of nolo contendere under the conditions reflected by these records.
In Chavarria, which presented strikingly similar circumstances, this court, speaking through Presiding Judge Woodley, noted that '(u)n...
To continue reading
Request your trial
-
Morgan v. State
...of all the parties and approval of the court. However, in Chavarria v. State, 425 S.W.2d 822 (Tex.Cr.App.1968); Killebrew v. State, 464 S.W.2d 838 (Tex.Cr.App.1971); and Kilpper v. State, 491 S.W.2d 117 (Tex.Cr.App.1973), the convictions based on guilty or nolo contendere pleas were reverse......
-
Young v. State
...statute authorized a conditional plea. "Strikingly similar" facts led to the same result on the same reasoning in Killebrew v. State, 464 S.W.2d 838, 839 (Tex. Cr. App. Then an appeal on a conditional plea of guilty, not nolo contendere, reached us. We asked, "Did the appellant waive any cl......
-
Lemmons v. State
...case. Moreover, the Court converted the rule to reject the "conditional plea" theory previously utilized in, e.g., Killebrew v. State, 464 S.W.2d 838 (Tex.Cr.App.1971) and Chavarria v. State, 425 S.W.2d 822 (Tex.Cr.App.1968). The Utsman court said, "To enter a plea of guilty one must waive ......
-
People v. Thomas
...The following State courts have disapproved: State v. Arnsberg, 27 Ariz.App. 205, 553 P.2d 238; State v. Dorr, 184 N.W.2d 673 Killebrew v. State, 464 S.W.2d 838 In the Federal courts conditional pleas have been approved in the Second and Third Circuits: United States v. Doyle, 348 F.2d 715 ......