Morgan v. State, 04-81-00292-CR

• Decision Date: 29 June 1983
• Docket Number: No. 04-81-00292-CR,04-81-00292-CR
• Citation: 656 S.W.2d 171
• Parties: Guy MORGAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 171

656 S.W.2d 171

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

No. 04-81-00292-CR.

Court of Appeals of Texas San Antonio.

June 29, 1983.

Richard E. Langlois, San Antonio, for appellant.

Bill White, Dist. Atty., Hipolito Canales, Jr., Jerry Rosson, Asst. Dist. Attys., San Antonio, for appellee.

Before CANTU, TIJERINA and DIAL, JJ.

OPINION

CANTU, Justice.

This is an appeal from a conviction for possession of methamphetamine as a repeat offender upon a plea of guilty in a nonjury trial. Punishment was assessed at fifteen years' confinement in the Texas Department of Corrections. ¹

Appellant in two grounds of error contends that the trial court erred in overruling his motion to suppress the seized methamphetamine. Finding fundamental error, we reverse and remand.

After the trial court overruled the motion to suppress, appellant waived his right to jury trial and entered a plea of guilty. In assessing punishment, the trial court accepted a sentencing recommendation by the prosecutor which had been personally agreed to by appellant. Subsequently, but before sentencing, the trial court reduced the punishment from the thirty years agreed upon to a term of fifteen years.

The issue of the legality of the search was raised by written motion filed prior to trial and, in addition, the trial court has specifically given permission to appeal. We, therefore, have jurisdiction to entertain this appeal. Tex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1979).

At the hearing on the guilty plea appellant executed an instrument entitled written waiver and consent to stipulation of testimony and stipulations which contained numerous exhibits including police reports, laboratory analysis reports and other papers in support of the enhancement count.

In the written waiver and consent to stipulation of testimony and stipulations is contained the following language:

Said defendant in person under oath together with his counsel and the attorney representing the State of Texas further agrees and stipulates that he, the said defendant, is the identical person named in the indictment in the above-styled and numbered cause and that all the acts and allegations in said indictment (Count Nos. 1 and 2 of the indictment) charging the offense of Possession of Methamphetamine are true and correct, and that the acts therein alleged occurred in Bexar County, Texas.

Also contained in the instrument is the following language:

[D]efendant judicially confesses that on August 12, 1976, in the 186th Judicial District Court of Bexar County, Texas, in Cause No. 76CR0128-C on the docket of said Court, the said Guy Morgan under the name of Guy Ossie Morgan, was duly and legally convicted in said last named court of a felony, to-wit: Attempted Burglary of a Habitation, upon an indictment then legally pending in said last named court and of which said court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by the defendant prior to the commission of the offense hereinbefore charged against him, as set forth in the first paragraph hereof. ²

The indictment in the first paragraph alleged in pertinent part, "[A]nd on or about the 10th day of March A.D. 1980, Guy Morgan did then and there knowingly and intentionally possess a controlled substance, namely: Methamphetamine; ..."

The majority of the exhibits contained in the written waiver and consent to stipulations of testimony and stipulations relate to the contested suppression evidence and supply the proof necessary to support the guilty plea conviction. See Tex.Code Crim.Proc.Ann. art. 1.15 (Vernon 1979).

When evidence from a contested search is not introduced by the State, the trial court's erroneous ruling on the admissibility of such evidence will not serve as the basis for a reversal on appeal. Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980).

But if the contested suppression evidence is admitted at trial and it alone supplies the proof necessary to support the conviction upon a guilty plea, this court will review the adverse ruling on the pretrial suppression motion pursuant to article 44.02, supra. On the other hand, if the guilty plea is supported by evidence independent of the matter contested in the pretrial motion, then any erroneous ruling on that motion does not vitiate the conviction. Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978).

In Haney v. State, 588 S.W.2d 913 (Tex.Cr.App.1979) the Court of Criminal Appeals reiterated the long accepted rule that a judicial confession to the allegations of an indictment will alone be sufficient to support a conviction on a guilty plea. [Citing Cooper v. State, 573 S.W.2d 533 (Tex.Cr.App.1978), Potts v. State, 571 S.W.2d 180 (Tex.Cr.App.1978); Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App.1975); Henderson v. State, 519 S.W.2d 654 (Tex.Cr.App.1975) ].

In Haney, supra, a judicial confession through testimony entered during the guilty plea alone sufficed to support the conviction as "evidence independent of the matter contested in the pretrial motion." The observation was therein made that an erroneous ruling on the pretrial motion to suppress would at most be harmless error because the otherwise complete confession met the standard of "overwhelming evidence of guilt" so as to render constitutional error harmless beyond a reasonable doubt. 588 S.W.2d at 914-15.

In the instant case, appellant did not testify as did the defendant in Haney, but he did enter into the written stipulation wherein he admitted to the truthfulness of the allegations in the indictment.

In Adams v. State, 490 S.W.2d 189 (Tex.Cr.App.1973), the exact same language was held to constitute a judicial confession. This type of "catch-all" stipulation is sufficient to constitute a judicial confession which will alone support a conviction. Potts v. State, supra. See also Miles v. State, 486 S.W.2d 326 (Tex.Cr.App.1972); McNeese v. State, 468 S.W.2d 800, 801 (Tex.Cr.App.1971).

Therefore, the evidence is sufficient to support the guilty plea without reference to the contraband alleged to be improperly admitted. Haney v. State, supra. Cf. Snyder v. State, 629 S.W.2d 930 (Tex.Cr.App.1982) (en banc). We are, however, presented with the same problem that plagued the Court of Criminal Appeals in Mooney v. State, 615 S.W.2d 776 (Tex.Cr.App.1981).

When the hearing on the guilty plea was called for announcements, appellant answered that he was ready subject to his motions. During the trial court's admonishments appellant through his attorney reminded the trial court that he was intending to preserve review of the adverse ruling on the motion to suppress and the trial court acknowledged appellant's announced intentions.

At the sentencing hearing some thirty-seven days later appellant's attorney brought to the trial court's attention his second motion for new trial seeking once again to preserve review on the overruled motion to suppress. Following sentencing appellant gave oral notice of appeal limited to those matters raised by pretrial motion and the trial court once again acknowledged appellant's conditional plea by appointing counsel to assist appellant at State expense. Undoubtedly, all the parties proceeded with the guilty plea under the belief that meaningful review was being preserved.

In Wooten v. State, 612 S.W.2d 561 (Tex.Cr.App.1981) the Court of Criminal Appeals recognized that an exception to the general rule of Article 44.02, supra, existed in those cases where a pretrial motion under the Speedy Trial Act was sought to be reviewed following a guilty plea. There it was held that such a pretrial motion alleging violations of the Act was nonreviewable because a guilty plea renders any defects waived. In Mooney v. State, supra, the defendant sought to review an adverse ruling on his motion to suppress following a nolo contendere plea in which he stipulated to the commission of the offense and such stipulation was admitted into evidence. The plea by defendant was entered pursuant to a plea bargain agreement and review was sought under the provisions of article 44.02, supra. The Court of Criminal Appeals noted that such a plea accompanied by a judicial stipulation amounting to a confession notably foreclosed appellate review but more importantly deprived the trial court of authority to accept the defendant's conditional plea. The court held that the trial court erroneously apprised the appellant of the effect of his plea as accompanied by the judicial admission.

In quoting from Wooten v. State, supra, the court stated:

If the plea was entered with such an agreement or understanding that the merits of the motion would be preserved for appeal, then the trial court was not authorized by State law to accept such a plea.... As a matter of constitutional law a guilty plea cannot be said to have been voluntary if it was induced by an agreement approved by the court that a question could be appealed when that agreement could not be fulfilled. [Emphasis supplied.]

Mooney, supra at 778. As in Wooten, it is plainly clear that there was an arrangement, approved by the court, which induced the appellant to plead guilty in the belief that he could appeal the motion to suppress ruling although burdened by an impediment preventing review. Under the circumstances, the plea was not knowingly and voluntarily made. On remand appellant is entitled to replead. The judgment is reversed and the cause is remanded.

DIAL, Justice, dissenting.

I dissent from the majority's disposition of this case.

Appellant entered a plea of guilty to possession of methamphetamine after the trial court had overruled a motion to suppress the seized methamamphetamine. The trial court assessed a punishment less than that recommended by the prosecution and agreed to by the appellant and his attorney. At the plea of guilty, appellant's counsel indicated he wished to...