Morgan v. State, 688 S.W.2d 504 (Tex.Crim.App. 1985) compels me to concur in the results. I, however, continue to believe that TEX CODE CRIM.PROC.ANN. art. 44.02 (Vernon 1977) contemplates a meaningful review of issues raised by pretrial motion.
A review can hardly be meaningful if the appealing party is placed in a no win situation in return for the entry of a guilty plea.
In the instant case appellant entered a plea of guilty to the offense charged and the State discharged its burden of proof by securing from the appellant an executed "Written Waiver and Consent to Stipulation of Testimony and Stipulations" which included the following:
I Viviano Cerna do hereby judicially admit and confess that on February 17, 1983, in Bexar County, Texas, I did then and there knowingly and intentionally possess a controlled substance namely: less than twenty-eight grams (28) of heroin; against the peace and dignity of the State. . . . 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 charging the offense of possession of a controlled substance namely heroin are true and correct, and that the acts therein alleged occurred in Bexar County, Texas.
The stipulations and the express judicial confession have until now always supported the plea of guilty independent of the matter contested in the pretrial motion. Therefore, any erroneous ruling on the motion to suppress did not vitiate the conviction. Ferguson v. State, 571 S.W.2d 908 (Tex.Crim.App. 1978).
Since the handing down of Morgan v. State, supra, this court is required to consider the issue presented for review arising out of an article 44.02 plea even if accompanied by proof independent of the matter contested. But why? No matter how this court rules on the matter, the appellant can receive little consolation from the holding. In the instant case appellant has secured a reversal and remand for a new trial with a judicial confession staring him in the face. What is to be gained by a retrial?
No issue has been made of the voluntariness of the plea and yet it is obvious that an accused would not knowingly and voluntarily give up a valuable right to trial in return for a no win dilemma.
I agree that a plea of guilty pursuant to article 44.02 does not carry with it a guarantee of a successful review. But it ought to carry with it an expectation that a successful review of his "preserved" issue will be of some benefit to him.1
Since appellant is a "successful" party to this appeal I defer the question of voluntariness of the plea to the appropriate court *Page 574 if and when it is raised. For the reasons expressed inMorgan v. State, 656 S.W.2d 171 (Tex.App.-San Antonio 1983) rev'd688 S.W.2d 504 (Tex.Crim.App. 1985) and because of the solution offered by the Court of Criminal Appeals on discretionary review, I reluctantly concur in the reversal and remand.