Morris v. State, 197-84

• Decision Date: 30 April 1986
• Docket Number: No. 197-84,197-84
• Citation: 749 S.W.2d 772
• Parties: Charles E. MORRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

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749 S.W.2d 772 Charles E. MORRIS, Appellant,
v.
The STATE of Texas, Appellee. No. 197-84. Court of Criminal Appeals of Texas,
En Banc. April 30, 1986.
Leave To File Motion for Rehearing
Denied March 23, 1988.

Allen C. Isbell (on appeal), Houston, for appellant.

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John B. Holmes, Jr., Dist. Atty. and James C. Brough and Mel Pechacek, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted in a bench trial upon his plea of "nolo contendere" to an indictment charging him with possession of cocaine. As a result of a plea bargain the State waived and abandoned the two prior felony convictions alleged in the indictment for the enhancement of punishment. The trial court assessed the recommended punishment of seven years' imprisonment. It was agreed that appellant would appeal the trial court's adverse ruling on his pretrial motion to quash the indictment as was his right under Article 44.02, V.A.C.C.P. The notice of appeal given was so limited.

On appeal, however, the sole ground of error urged was there was "no evidence to support the plea of guilty (sic)." ¹ The State argued the Court of Appeals was without jurisdiction under Article 44.02, V.A.C.C.P., because the appeal was limited to the ruling on the pretrial motion and that had not even been urged on appeal. Citing Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983), the Court of Appeals ruled that where a claim of no evidence was raised to support an essential element of the offense, it could review the asserted error "in the interest of justice." It then proceeded to find that the judicial confession contained in the written stipulation was sufficient to support the plea of nolo contendere under Article 1.15, V.A.C.C.P. Morris v. State, (Tex.App.--Houston [1st] 1983--No. 01-82-0534-CR). Appellant's petition for discretionary review was granted to determine the correctness of the Court of Appeals' decision.

An examination of the record shows that the parties made clear to the trial court that appellant desired to appeal "on matters raised by motion prior to trial." The record also reflects:

"THE COURT: Do you understand now, in the event I do follow the plea bargaining agreement, that you will have no right whatsoever to appeal this matter, except with the permission and consent of the court, or except for matters pertaining to motions filed prior to the trial? Do you understand?

"DEFENDANT: Yes, sir.

"THE COURT: The Court will follow the plea bargaining agreement and will accept the plea of no contest and will permit the defendant to appeal this matter based on the motions filed prior to the trial." (Emphasis added.)

At the time of the sentencing appellant's counsel stated for the record that the notice of appeal was being tendered to the clerk of the court for filing. The written notice of appeal filed reflects "that Defendant desires to appeal from the action of the court in overruling and denying Defendant's Motion to Quash Indictment which had been filed in this cause."

A separate motion by appellant to permit appeal on the court's overruling of the motion to quash the indictment, and a written order by the court granting and limiting the appeal to that matter are also in the record as of the date of the plea of nolo contendere.

Under Article 44.02, V.A.C.C.P., the appeal was thus limited solely to the question of the court's ruling on the pretrial motion to quash the indictment.

Several months after appellant's brief was due in the Court of Appeals it was still not filed, so that Court extended the time for filing and ordered appellant's counsel to file a brief. When still no brief was filed, the Court of Appeals entered another order directing the trial court to remove counsel and appoint another attorney to represent the appellant on appeal.

Appellant's second counsel filed a brief advancing a sole ground of error, to-wit:

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"The conviction should be reversed because there is no evidence to support the plea of guilty."

The argument advanced was that this was a "no evidence" case and thus a violation of due process had occurred. Reference was made to State's Exhibit No. 1 as the only evidence offered. No mention was made of Article 1.15, V.A.C.C.P.

No effort by brief or otherwise was made to urge error in the overruling of the motion to quash the indictment upon which the limited appeal was permitted.

Article 44.02, V.A.C.C.P., as amended in 1977, ² 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...."

The main thrust of the 1977 amendment was to reduce the appellate case load by eliminating appeals where the defendant had entered a plea of guilty or nolo contendere before the court as a result of a plea bargain and the punishment assessed did not exceed that agreed upon. Thus defendants in the described situation have no right to appeal unless the permission of the trial court is obtained, except the right to appeal is retained as to those matters raised by written motion filed prior to trial, regardless of the trial court's permission.

In the instant case notice of appeal was given only as to a matter raised by pre-trial motion. Under Article 44.02, supra, no other matter was appealable.

The only right of a defendant to appeal is a statutory right. See Article 44.02, supra; Powell v. State, 99 Tex.Cr.R. 276, 269 S.W. 443 (App.1925); Savage v. State, 155 Tex.Cr.R. 576, 237 S.W.2d 315 (App.1951); Ex parte Paprskar, 573 S.W.2d 525 (Tex.Cr.App.1978); Ex parte Spring, 586 S.W.2d 482 (Tex.Cr.App.1978). ³

Thus appeals are within the control of the Legislature. "In the exercise of its powers, the Legislature may impose proper restrictions on the right of appeal, prescribe regulations in regard to appellate jurisdiction, and promulgate rules to be observed in prosecuting an appeal." 21 Tex.Jur.3rd, Crim.Law, § 1606, p. 404; DeSilva v. State, 98 Tex.Cr.R. 499, 267 S.W. 271 (App.1925).

The Court of Appeals recognized that no alleged error as to the overruling of the motion to quash was raised on appeal, but only the sufficiency of the evidence or no evidence question. That Court wrote:

"The appellant's ground of error was not discussed in his pre-trial motion to quash, nor did the appellant have the consent or permission of the trial court to file this appeal. However, if there is no evidence to support an essential element of the offense, fundamental error exists and the court may review the error in the interest of justice. Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983)."

Carter held that the Court of Appeals may review fundamental error in the interest of

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justice. Carter dealt with authority to review an unassigned error when the court has jurisdiction of the cause on appeal. Here the court did not have jurisdiction of the cause on appeal. The Court of Appeals' reliance on Carter was misplaced.

Nevertheless the Court of Appeals proceeded to review appellant's "no evidence" claim, and found the evidence sufficient to support the conviction, though Article 1.15, V.A.C.C.P., was not mentioned.

We conclude that the Court of Appeals was without jurisdiction to entertain the appeal. Thus this Court is also without jurisdiction except to dismiss the appeal. And this we shall do. ⁴

The judgment of the Court of Appeals is reversed and the appeal is ordered dismissed.

CLINTON, Judge, dissenting.

Appellant has been blindsided!

The trial court found appellant guilty on his plea of "nolo contendere" to an indictment charging him with possession of cocaine. Pursuant to a plea...