I agree with the majority that the judgment of the trial court must be reversed. However, because I conclude that appellant's guilty plea was conditional, and thus, not knowingly and voluntarily entered, I disagree as to the reason for reversing. Consequently, I concur in the judgment only.
PROCEDURAL BACKGROUND The State challenges this Court's jurisdiction to review appellant's point of error. Appellant filed a pretrial motion to suppress evidence "seized during the course of and as a result of an illegal detainment, seizure, search, and arrest of the Defendant. . . ." Following a hearing, the court denied appellant's motion to suppress.
Thereafter, the State and appellant executed a document captioned "PLEA AGREEMENT." This "agreement" provided that appellant would plead guilty. In a column titled "Type of plea," a box was checked next to the term "Plea-bargain." However, in the same column, there was a box checked next to the term "Open as to deferred." The agreement did not include either the length of confinement or the length of probation. The agreement included a fine of $750.
Appellant then entered his guilty plea. While discussing the plea, the court said, "The Court understands that Mr. Strowenjans wishes to appeal [the ruling on appellant's motion to suppress]. Is that correct?" Counsel answered that the court's understanding was correct. The court then said, "I believe that there is a plea bargain in the case which asks the Court to assess a probated sentence and a fine of $750, but there's no agreement as to whether that probation should be deferred or regular probation." Neither the State nor appellant discussed the plea agreement further. However, defense counsel asked appellant, "And was the punishment that you have agreed upon in connection with the plea bargain agreement, and whether you get deferred or regular probation, it doesn't exceed the punishment recommended by the prosecutor and agreed to by you, does it?" Appellant answered that it did not.
Counsel told the court that his client was entering a guilty plea conditioned on his right to appeal "the Fourth Amendment issue." Following the court's acceptance of the plea, defense counsel called appellant to the stand. Appellant testified that his plea was conditioned on the right to appeal the ruling on the motion to suppress.
At the time the court pronounced sentence, it told appellant that it granted permission for his appeal.
The judgment in this case characterized the plea as "open."
NATURE OF THE PLEA The majority predicates its discussion of this Court's jurisdiction over the point on the existence or non-existence of a plea bargain as defined by rule 40(b)(1) of the Texas Rules of Appellate Procedure. I agree with the majority to the extent that the "agreement" in this case is a plea bargain in the barest sense of the term.2 Like the majority, I do not believe that the proviso to rule 40(b)(1) is implicated in determining our jurisdiction. However, I disagree as to the reason the proviso does not apply. Rule 40(b)(1) provides as follows:
*Page 149Appeal is perfected in a criminal case by giving timely notice of appeal; except, it is unnecessary to give notice of appeal in death penalty cases. Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty
or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial. . . .
TEX.R.APP.P. 40(b)(1). The majority concludes that the proviso of article 40(b)(1) is not implicated because punishment has not yet been assessed when the court defers adjudication of guilt. The majority relies on Ex parteHernandez, 705 S.W.2d 700 (Tex.Crim.App. 1986), to support its contention. I believe this reliance is misplaced.
Appellant's right to appeal from an adverse ruling on a pretrial motion is grounded in article 44.01(j) of the code of criminal procedure, which provides as follows:
Nothing in this article is to interfere with the defendant's right to appeal under the procedures of Article 44.02 of this code. The defendant's right to appeal under Article 44.02 may be prosecuted by the defendant where the punishment assessed is in accordance with Subsection (a), Section 3d, Article 42.12 of this code, as well as any other punishment assessed in compliance with Article 44.02 of this code.
TEX.CODE CRIM.PROC.ANN. art. 44.01(j) (Vernon Supp. 1995). This Court has held that article 44.01(j) did not confer a right to appeal from orders deferring adjudication since the statute refers to "punishment," while probation is not punishment. See Dillehey v. State, 788 S.W.2d 154, 155 (Tex.App. — Dallas 1990), rev'd, 815 S.W.2d 623 (Tex.Crim.App. 1991). The Court of Criminal Appeals rejected this reasoning, holding that the clear legislative intent of article 44.01(j) was to give a right to appeal from orders deferring adjudication. Dillehey v. State, 815 S.W.2d 623, 626 (Tex.Crim.App. 1991).3 I conclude that, since the statute refers to punishment being assessed in accordance with section 5(a) of article 42.12,4 the legislature necessarily intended that an order deferring adjudication be given the procedural effect of sentence being pronounced. As a result, I believe that Ex parteHernandez has, in effect, been overruled.
Nonetheless, I agree with the majority's conclusion that the proviso of rule 40(b)(1) has no application in this case. Even if probation is punishment for purposes of appeals from orders deferring adjudication, the parties in this case never agreed on the length of confinement or the length of probation. Rather, they only agreed that appellant would receive probation in some form, whether by deferred adjudication or by "straight" probation. They never agreed on the nature of the probation, the term of confinement or the length of the probationary term. This left the trial court free to impose whatever term of confinement and/or probationary term it saw fit, within the range allowable by law.
The purpose of the proviso to rule 40(b)(1) is to allow appeals on nonjurisdictional matters in cases involving guilty pleas, thus encouraging guilty pleas. See Lyon v.State, 872 S.W.2d 732, 735 (Tex.Crim.App.), cert.denied, ___ U.S. ___, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994). However, in return for the right to appeal certain nonjurisdictional matters, there must be no remaining issues between the parties other than those nonjurisdictional matters.See Morgan v. State, 688 S.W.2d 504, 507 (Tex.Crim.App. 1985). When the parties have not agreed as to the form of probation, the term of confinement (if "straight" probation is given) or the term of probation, there remain issues between *Page 150 the parties. Moreover, an appellant has the burden of showing a plea bargain within the contemplation of rule 40(b)(1) in order to invoke the right to appeal. Cf. Padgett v.State, 764 S.W.2d 239, 240 (Tex.Crim.App. 1989);Galitz v. State, 617 S.W.2d 949, 951 (Tex.Crim.App. 1981) (decided under proviso to article 44.02, predecessor to rule 40(b)(1)).
In this case, the record shows only a partial agreement as to punishment. The parties did not agree as to the length of either the confinement or the probationary term, or even the form of probation. Although there may have been some agreement between the parties as to these issues, the agreement does not appear in our record. This was an "open plea," not a plea bargain, for purposes of rule 40(b)(1). See Ex partePatterson, 726 S.W.2d 146, 148 (Tex.Crim.App. 1987). Because this was an open plea, the proviso of rule 40(b)(1) has no application in this case.
CONDITIONAL GUILTY PLEAS Generally, an open plea of guilty waives all nonjurisdictional error. See Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App. 1972). However, this rule is predicated on the entry of a knowing and voluntary plea.Shallhorn v. State, 732 S.W.2d 636, 639 (Tex.Crim.App. 1987). If an open plea is entered on the mistaken understanding that the merits of a pretrial motion may be raised on appeal, the plea is not entered knowingly and voluntarily. Christal v. State, 692 S.W.2d 656, 659 (Tex.Crim.App. 1985) (op. on reh'g). Our satisfying the condition on which appellant based his plea by simply reviewing the merits of his pretrial motion to suppress is foreclosed by prior case law.
The court of criminal appeals has held that, when an appellant enters his guilty plea because of a mistaken understanding as to the appealability of the ruling on a motion to suppress, an appellate court may not address the motion to suppress in the interests of justice. See Broddus v.State, 693 S.W.2d 459, 461 (Tex.Crim.App. 1985). UnderBroddus, our only choice is to reverse and remand. However, I have reservations about the soundness of the holding in Broddus. Broddus has been criticized by the Fourteenth Court of Appeals as improperly limiting the reviewing court's power.See Jackson v. State, 841 S.W.2d 38, 40 (Tex.App. — Houston [14th Dist.] 1992, no pet.) ("The holding inBroddus creates an absurdity in the law."). As the Fourteenth Court says:
Id. I agree with the Fourteenth Court thatBroddus represents bad policy. However, my disagreement with the court in Broddus extends to its legal analysis as well.This result makes no sense. If this record shows that somehow appellant's plea was conditional because of an erroneous belief he could appeal, then it is even more clear that his goal was to have that appeal heard. The court of criminal appeals should not restrict our ability to give the appellant what he truly wanted in the first place. If this court must find a plea conditional, we should have the opportunity to then look at the appeal on the merits and dispose of the matter once and for all. Otherwise, this appeal is destined to stay in appellate orbit for some time to come.
Broddus addresses an issue of simple waiver as if it constituted a jurisdictional bar to appellate review of a point of error. However, a Helms waiver presents no jurisdictional bar; the matter involved is only one of appellate restraint. See Galitz v. State, 617 S.W.2d 949, 952 (Tex.Crim.App. 1981). "Appellate restraint" is simply a matter of the policy of an appellate court not reviewing points that are waived on appeal. The reason for the distinction between waiver and jurisdiction is simple: waiver generally arises from caselaw or rules promulgated by the judiciary. See, e.g., TEX.R.APP.P. 52(a); TEX.R.CRIM.EVID. 103(a). The judiciary can neither create nor limit its own jurisdiction. Jurisdiction can be created or limited only by the constitution or by statute. Cf. Lyonv. State, 872 S.W.2d 732, 738 (Tex.Crim.App. 1994) (Clinton, J., dissenting); Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App. 1990) (failure to comply with 40(b)(1) may constitute a failure to preserve error, but not because the appellate court lacks jurisdiction). By treating a simple waiver issue as if it were a jurisdictional bar, the court inBroddus ignores that waiver is simply a matter of policy. I believe that Broddus was incorrectly decided, both as legal doctrine *Page 151 and as policy. Under the constitution and the statutes establishing this Court's jurisdiction, it has the power, and it should have the discretion, to address appellant's point in the interest of justice.
Notwithstanding my disagreement with Broddus, its holding controls the outcome in this case. Appellant's plea was conditioned on the incorrect assumption that he could appeal the ruling on his motion to suppress; as a result, the plea was involuntary. In addition, this issue may be raised by an appellate court on its own motion. See Christal v.State, 692 S.W.2d at 656, fn. 2; Davila v.State, 767 S.W.2d 205, 206 (Tex.App. — Corpus Christi 1989, no pet.). As a result, I believe, like the majority, that the case must be reversed and remanded for a new trial. However, because I disagree with the majority's reaching the merits of the point, I concur only in the judgment.