Padgett v. State

• Decision Date: 25 January 1989
• Docket Number: No. 0266-87,0266-87
• Citation: 764 S.W.2d 239
• Parties: Larry William PADGETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 239

764 S.W.2d 239

Larry William PADGETT, Appellant, v. The STATE of Texas, Appellee.

No. 0266-87.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 25, 1989.

John E. Weddle, Dallas, for appellant.

John Vance, Dist. Atty. & Patricia Poppoff Noble, Gary A. Moore & John Ziegler, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

This is a conviction for driving while intoxicated, a misdemeanor, on a plea of nolo contendere before the trial court.

Appellant pleaded after denial of his pretrial motion to suppress evidence obtained by peace officers upon stopping appellant at a police roadblock, detaining him and investigating his sobriety. The court of appeals found the initial stop was not authorized by law, and reversed the judgment. Padgett v. State, 723 S.W.2d 780 (Tex.App.--Dallas 1987). ¹

However, lurking throughout the appellate process is a question of whether the court was honoring a true plea bargain agreement within the contemplation of former article 44.02, C.C.P. ²

Although the trial court assessed punishment conformably with what appears to be the final recommendation by the prosecuting attorney, the State insists that neither a plea bargain nor acceptance of terms of punishment by appellant is shown. ³ We granted review first to determine that threshold issue and then, if need be, to examine reasons given by the Dallas Court for declaring illegal the roadblock stop.

In a single paragraph of its unreported supplemental opinion the Dallas Court of Appeals disagreed with the State's contention that "the record does not show that his plea of nolo contendere was pursuant to a plea bargain," merely adding:

"... We have thoroughly examined the record, and it clearly reveals that appellant's plea of nolo contendere was in response to a plea bargain. Therefore, appellant has not waived his right to appeal under Article 44.02 of the Texas Code of Criminal Procedure."

Former article 44.02, supra, "places a burden on one who would appeal from a negotiated proceeding before the Court to make manifest upon the record [the prescribed prerequisites] in order to invoke the jurisdiction of this Court under the proviso[.]" Galitz v. State, 617 S.W.2d 949, at 951 (Tex.Cr.App.1981) (emphasis in original). ⁴ Those requisites are explicated in Galitz, viz "(1) existence of a plea bargaining agreement with the State;

(2) punishment assessed by the trial court at or within that recommended by the prosecutor and agreed to personally by the defendant;

(3) the basis of the appellate ground of error has been presented in writing, pretrial, to the trial court for consideration OR the trial court has given permission to pursue an appeal in general or upon specific contentions."

Id., at 951-952 (footnotes omitted).

We do not have a transcription of notes of a court reporter of the plea hearing (only a statement of facts adduced at hearing on motion to suppress). Thus we must discern what occurred at the former from papers in the transcript.

On that same basis, appellant represents that the requirement of a plea bargain is "clearly shown" by matters he reviews that we reproduce in the margin. ⁵ Taking his cue from and quoting a clause in Dees v. State, 676 S.W.2d 403, at 404 (Tex.Cr.App.1984), appellant concludes that a careful review of the record for "evidence that might reflect a plea bargain agreement " indicates his plea the judge accepted is a result of a negotiated plea bargain with the State. Brief, at 3. ⁶ But, for reasons to be developed, we do not regard "evidence that might reflect a plea bargain agreement" sufficient to meet the requirements of former article 44.02, as explicated in Galitz v. State, supra.

Pertinent papers in the record, as well as a recitation by counsel in his summary of proceedings, see ante, at note 2, confirm that appellant was present in court on March 13 when the plea hearing was held. The second prerequisite of former article 44.02 is that recommended punishment be "agreed to [personally] by the defendant and his attorney," Galitz v. State, supra. Yet, "the record fails to reflect appellant's personal consent to the recommended punishment [made by the prosecutor]," Decker v. State, 570 S.W.2d 948, at 950 (Tex.Cr.App.1978).

Unless an accused personally agrees to the punishment recommended by the prosecutor, all requisites of the proviso in former article 44.02 are not satisfied. Therefore, an appeal will not lie under the proviso; but defendant may not be denied his appeal under the general right of appeal granted by Article 44.02. Decker v. State, supra, and progeny, e.g., Broggi v. Curry, 571 S.W.2d 940, at 941 (Tex.Cr.App.1978), and Eubanks v. State, 599 S.W.2d 815, at 816 (Tex.Cr.App.1980); see Sterling v. State, 595 S.W.2d 536, at 537 (Tex.Cr.App.1980); see also Lackey v. State, 574 S.W.2d 97, at 100 (Tex.Cr.App.1978, and King v. State, 687 S.W.2d 762, at 765-766 (Tex.Cr.App.1985); cf. Ferguson v. State, 571 S.W.2d 908, at 909 (Tex.Cr.App.1978).

It follows that the Dallas Court of Appeals wrongly rejected persistent contentions by the State to that effect, see ante, at note 2, and thus erroneously concluded that appellant perfected his appeal under the proviso to former article 44.02. Since appellant was and is relying solely on that proviso, the second ground for review becomes moot, and we do not intimate any view on that issue in this cause.

Therefore, the judgment of the Dallas Court of Appeals is reversed and the judgment of the trial court is affirmed.

1 Opining that establishing the road block for "multiple purposes" made the stop "illegal since it was in violation of state law," id, at 781, the Dallas Court of Appeals further found:

"Thus, it is clear from the record that the officers had neither probable cause nor reasonable suspicion to justify the stop of appellant. Accordingly, the stop was illegal and the evidence must be suppressed under the 'fruit of the poisonous tree' doctrine...."

Id., at 782-783. (All emphasis is supplied here and throughout by the writer of this opinion unless otherwise indicated.)

2 On direct appeal the State presented a counterpoint asserting that the plea "waived all non-jurisdictional defects," arguing that the record fails to reflect a situation prescribed by the proviso to former article 44.02; when the opinion of the Dallas Court pretermitted that point, the State moved for rehearing en banc; only in a supplemental opinion after petition for discretionary review was filed,...