Mooney v. State
Decision Date | 20 May 1981 |
Docket Number | Nos. 67531,67532,No. 3,s. 67531,3 |
Citation | 615 S.W.2d 776 |
Parties | Dean MOONEY and Rosemary Mooney aka Rosemary Shelton, Appellants, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Charles O. Melder, Houston, Wayne Ingram, C. Samuel Rael, Atlanta, for appellants.
John B. Holmes, Jr., Dist. Atty., Larry P. Urquhart and Charlie Davidson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, W. C. DAVIS and McCORMICK, JJ.
These are appeals from convictions for aggravated promotion of prostitution. V.T.C.A., Penal Code Sec. 43.04. Punishment for appellant Dean Mooney was assessed under V.T.C.A., Penal Code Sec. 12.44(b), at confinement in the county jail for three days plus a fine of one thousand dollars. Punishment for appellant Rosemary Mooney was assessed under V.T.C.A., Penal Code Sec. 43.04(b) at confinement for three years, probated.
Both appellants assert six grounds of error in which they attack the legality of the searches of their residence and office. These grounds essentially contend that it was error to overrule their motions to suppress the evidence seized as a result of those searches.
The records reflect that the instant causes were tried separately. Dean Mooney pled nolo contendere to the instant offense pursuant to a plea bargain agreement. There was no such agreement in the case of Rosemary Mooney. Both appellants urged the trial court to suppress certain evidence recovered in the searches in question; however, after these motions were overruled, both appellants pled nolo contendere to the instant offense. Further, both appellants stipulated to the commission of the instant offense and such stipulations were admitted into evidence at the hearings in the trial court.
We first consider the appeal of Dean Mooney. In Isam v. State, 582 S.W.2d 441, 444, (Tex.Cr.App.) we held that a defendant may challenge an adverse ruling on his motion to suppress even though he subsequently entered a guilty plea to misdemeanor charges. Isam, however, involved a case wherein no evidence other than the defendant's guilty plea supported the conviction. In such a situation we reasoned that the purpose of Art. 44.02, V.A.C.C.P. 1, would be frustrated if the rule were otherwise. This we found true since by virtue of Art. 27.14, V.A.C.C.P. 2, issues raised by the motions to suppress in such cases would be automatically forfeited. See Isam v. State, supra at 443.
The case of appellant Dean Mooney presents a different situation, however. It appears from the record that the appellant judicially stipulated to the commission of the offense; that is, evidence other than his plea of nolo contendere supported his conviction. Hence we are not presented with an automatic forfeiture of the right to assert error in this Court. Therefore, due to appellant's stipulation to the commission of the offense, the errors presented in his motion to suppress are not appealable under Art. 44.,02, supra. See Ferguson v. State, 571 S.W.2d 908, 909-10 (Tex.Cr.App.); cf. Isam v. State, supra at 444 ( ).
The record further reveals, however, that the trial court erroneously apprised the appellant of the effect of his plea. After the trial court inquired into the appellant's plea bargain agreement with the State, the following transpired:
The court, however, never advised the appellant that the effect of his stipulations to the commission of the offense would be to foreclose his right to appeal the pre-trial matters raised in his motion to suppress. In fact the discussion between appellant and the court which we have set out above indicates that appellant's plea was induced by the understanding that the matters raised by his motion to suppress would be appealable. The record also indicates that the stipulation was before the court at the time he stated that the pre-trial matters could be appealed.
In Wooten v. State, 612 S.W.2d 561, 563 (Tex.Cr.App.) we held:
(Emphasis added.)
Because the trial court lacked...
To continue reading
Request your trial-
Morgan v. State
...prevent fulfillment of that agreement); accordingly, the plea could not be said to have been voluntary, citing Mooney (Dean) v. State, 615 S.W.2d 776 (1981) [hereinafter "Mooney "]; see also Wooten v. State, 612 S.W.2d 561 Thus, the court of appeals was constrained to reverse the judgment o......
-
Flowers v. State
...voluntary or that the record did not show the plea was voluntary. Fuentes v. State, 688 S.W.2d 542 (Tex.Cr.App.1985); Mooney v. State, 615 S.W.2d 776 (Tex.Cr.App.1981); Wooten v. State, 612 S.W.2d 561 (Tex.Cr.App.1981); Richards, 562 S.W.2d 456; Wade, 508 S.W.2d 851; Davila, 496 S.W.2d 629;......
-
Ricondo v. State
...suppress could be appealed when that agreement could be carried out. Wooten v. State, 612 S.W.2d 561 (Tex.Cr.App.1981); Mooney v. State, 615 S.W.2d 776 (Tex.Cr.App.1981). Cf. Galitz v. State, 617 S.W.2d 949 In Cleveland v. State, 588 S.W.2d 942 (Tex.Cr.App.1979), this court wrote: "It has l......
-
Cooper v. State
...S.W.2d 397, 401-02 (Tex. Cr. App. 1981) (citations omitted). 9. Fuentes v. State, 688 S.W.2d 542 (Tex. Cr. App. 1985); Mooney v. State, 615 S.W.2d 776 (Tex. Cr. App. 1981); Wooten v. State, 612 S.W.2d 561 (Tex. Cr. App. 10. Flowers, 935 S.W.2d at 134 (citing TEX. GOV'T CODE 22.108(a)). 11. ......