Morgan v. State

• Decision Date: 06 March 1985
• Docket Number: No. 770-83,770-83
• Parties: Guy MORGAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 504

688 S.W.2d 504

Guy MORGAN, Appellant, v. The STATE of Texas, Appellee.

No. 770-83.

Court of Criminal Appeals of Texas En Banc.

March 6, 1985.

Richard E. Langlois, San Antonio, for appellant.

Bill White, Former Dist. Atty., Hipolito Canales, Jr. and Jerry Rosson, Former Asst. Dist. Attys., Sam D. Millsap, Jr., Dist. Atty., and Alan E. Battaglia, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted upon his plea of guilty of possession of methamphetamine; his sentence was assessed at 15 years confinement.

The court of appeals found that after appellant's written pretrial motion to suppress was overruled, appellant waived his right to trial by jury and entered a plea of guilty. 656 S.W.2d 171. The trial court assessed punishment within that recommended by the prosecutor and personally agreed to by appellant. At the plea hearing, appellant executed a written waiver and consent to stipulation of testimony and stipulations which contained numerous exhibits, including police reports, a laboratory analysis report and the like. Contained in the written stipulation of testimony was the following judicial admission by appellant: "... all the acts and allegations in said indictment ... charging the offense of possession of methamphetamine are true and correct...."

The court of appeals noted that in Haney v. State, 588 S.W.2d 913 (Tex.Cr.App.1979) [hereinafter "Haney "] the long standing rule that a judicial confession will alone support conviction on a plea of guilty was applied for the first time by this Court to a conviction obtained under Article 44.02, V.A.C.C.P., as amended, effective August 29, 1977; that amendment provides:

"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."

Thus, the court below recognized that upon application of the rule in Haney, admission of fruits of the contested search was rendered harmless, even if unlawfully obtained; the court therefore declined to review the merits of the appellate contention.

However, the court of appeals also observed that the record of the plea hearing revealed it to be the understanding and agreement of all concerned--appellant, prosecutor, defense counsel and trial judge--that appellant's plea was contingent upon his right to a meaningful appellate review of the search contention preserved by motion to suppress. The court of appeals concluded the plea was therefore shown to have been induced by the agreement that the search could be appealed (when Haney in fact would operate to 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 (Tex.Cr.App.1981).

Thus, the court of appeals was constrained to reverse the judgment of conviction and order the cause remanded to give appellant an opportunity to replead.

By petition for discretionary review, the State contends that Haney and Mooney are in "irreconcilable conflict" and urges us to overrule Mooney. We granted review in order to reconsider the underpinnings of both Mooney and Haney and their respective interrelation with the present version of Article 44.02, supra.

As we explained in Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983), for an appellant such as Dean Mooney to obtain "the plenary review he bargained for" the Court would have to reject that line of authorities which imported a holding in Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974) into the jurisprudence of guilty pleas. The line starts with Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Cr.App.1978). In Stiggers, supra, the Court held error in overruling a motion to suppress evidence was neither presented for review nor shown since the record did not reflect "that any evidence obtained as a result of this search was introduced in evidence," 506 S.W.2d at 611. Four years later, noting the holding in Stiggers, the Ferguson Court panel decided that though the 1977 amendment to Article 44.02, supra, abrogated the rule of Helms v. State, 484 S.W.2d 925, 927 ¹ (Tex.Cr.App.1972), it did not change the Stiggers formulation. Accordingly, the panel applied Stiggers to the guilty plea proceeding and concluded:

"This new practice, however, does not change the rule in Stiggers v. State, supra, relied on here. If the guilty plea is supported by evidence (see Art. 1.15, supra) independently of the matter contested in the pre-trial motion, then any erroneous ruling on that motion does not vitiate the conviction. Such is the case here."

Ferguson, supra, at 910.

Before amended in 1977, Article 44.02 provided simply that a defendant "has the right to appeal under the rules hereinafter prescribed." See Historical Note to Article 44.02. Helms v. State, supra, see note 1, ante, was decided in 1972 and was soon followed by, e.g., Chapman v. State, 525 S.W.2d 8 (Tex.Cr.App.1975) (claimed denial of speedy trial waived by guilty plea) and Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977) (guilty plea waives failure of court to conduct pretrial hearing on motion to suppress). The 1977 amendment to Article 44.02 allowed a defendant whose plea bargain was honored by the court "to prosecute his appeal ... on those matters which have been raised by written motion filed prior to trial." Thus, we have a clear expression of legislative intent that such a defendant has the right of appeal from a conviction based on his plea of guilty or nolo contendere.

Indeed, as found in Ferguson, supra, permitting an appeal in those circumstances was to encourage guilty pleas "where the only contested issue between the parties is some matter such as the lawfulness of a search, voluntariness of a confession, competency to stand trial, sufficiency of the indictment, or other matters that may be raised by written motion filed prior to trial," id., at 910.

Having thus encouraged pleas of guilty and nolo contendere in exchange for the right to appeal contested pretrial issues, the Legislature surely contemplated a meaningful appeal--one that addresses and decides each issue on its merits. The Helms rule of waiver barring review was superceded. Ferguson, supra, at 910. Without let or hindrance the 1977 amendment to Article 44.02 opened the previously closed way to appellate consideration of issues raised and contested before trial.

To be sure, some appellants have "successfully navigated the procedurally hazardous passageway of Article 44.02," Brown v. State, 617 S.W.2d 196, 199 (Tex.Cr.App.1981) and Galitz v. State, 617 S.W.2d 949, 956 (Tex.Cr.App.1981); but most have failed to steer clear of rocks and shoals, e.g., Brewster v. State, 606 S.W.2d 325, 328 (Tex.Cr.App.1980) and Haney, supra. The principal hazard is the judicial confession: applying the Stiggers formulation when the guilty plea is supported by a written judicial confession or admissions made in open court substantially vitiates the amendment. When made, the confession or admission is a necessary and concomitant part of the whole ritual of the guilty plea trial. ² Just as the plea itself no longer waives the right to complain of pretrial rulings on appeal, so the confession or admission will not bar an appellate court from reaching the merits of the complaint. To this extent, then, Ferguson and its progeny including Haney are overruled.

As for the State's contention that Mooney irreconcilably conflicts with Haney, we need only point out the true relationship between the cases was that the former was necessitated at least in part by the latter. But, having overruled Haney, we no longer need apply the rationale of Mooney and Wooten in the context of convictions obtained under Article 44.02.

We hold appellant has adequately preserved his search and seizure claim for appellate review on its merits. Accordingly, this cause is remanded to the court of appeals for that review.

WHITE, J., not participating.

TEAGUE, Judge, concurring.

In this instance, the majority opinion holds, for purposes of Art. 44.02, V.A.C.C.P., that if the defendant files a written pretrial motion to suppress, after which a hearing is held thereon but the trial judge denies or overrules the motion, and thereafter the defendant enters into a plea bargain agreement, which entitles him to appeal the trial court's ruling on the motion to suppress, and the plea bargain agreement is consummated, if there is an appeal, an appellate court will review the merits of the defendant's contention, that the trial court erred in denying or overruling the pretrial motion to suppress, without resorting to any sort of legal "technicality" in order to avoid addressing the issue whether the trial court erred in denying or overruling the motion to suppress. See and Compare Dees v. State, 676 S.W.2d 403 (Tex.Cr.App.1984); Morgan v. State, 608 S.W.2d 639 (Tex.Cr.App.1980); Velasquez v. State, 608 S.W.2d 674 (Tex.Cr.App.1980); and Cleveland v. State, 588 S.W.2d 942 (Tex.Cr.App.1979).

With the above qualifying remarks, I join the majority opinion.

However, but in order that there be no mistake or misunderstanding about what the majority opinion is actually holding, it, the majority, should expressly overrule the following cases of...