Dees v. State

*404OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

The record reflects that after Roy Allen Dees, appellant, entered a plea of nolo con-tendere, he was convicted in the trial court of unlawful possession of less than two ounces of marihuana. Punishment was assessed by the trial judge at confinement in the Harris County Jail for three (3) days and a fine of $200.

The record also reflects that prior to trial appellant filed a motion to dismiss the complaint and information on the ground that his right to a speedy trial, guaranteed by the provisions of Art. 32A.02, V.A.C.C.P., (The Speedy Trial Act), had been violated. The trial judge held a hearing on the motion, after which he denied the motion. Thereafter, at an unknown time on the same day, appellant entered a plea of nolo contendere, after which the trial judge assessed the above punishment.

Appellant appealed his conviction to the Fourteenth Court of Appeals, and that court, in a unanimous opinion by Justice Robertson, agreed with appellant that he had been denied his right to a speedy trial and ordered the trial court to dismiss the complaint and information. Dees v. State, S.W.2d (Tex.App.-Houston [14th] 1983). We granted the State’s petition for discretionary review in order to make the determination whether the court of appeals correctly disposed of the case. We find it did not.

We first observe that although the record of appeal contains a transcription of the hearing that was held on appellant’s motion to dismiss, it does not contain a transcription of the proceedings when appellant entered his plea of nolo contendere. The record is also silent as to whether the plea of nolo contendere appellant entered might have been made pursuant to some type of plea bargain agreement. Cf. Art. 44.02, V.A.C.C.P. There is also not anything in the record of appeal that might reflect or indicate that when appellant entered his plea of nolo contendere he was not waiving his right to complain on appeal about the trial judge’s denying his motion to dismiss.

Article 27.02 (5), V.A.C.C.P., expressly provides: “A plea of nolo contendere, the legal effect of which shall be the same as that of a plea of guilty, except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”

It is well settled that when a defendant, who is charged with committing a misdemeanor offense, pleads guilty or nolo contendere to the charge, such plea constitutes an admission to every element of the charged offense. Thus, in a misdemeanor case, such a plea is conclusive of the defendant’s guilt. It is also well settled that in that instance it is only when the defendant has satisfied the provisions of Art. 44.02, supra, that he may complain on appeal of rulings on pretrial motions. See Isam v. State, 582 S.W.2d 441 (Tex.Cr.App.1979), and Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983).

We have carefully reviewed the record for any evidence that might reflect that appellant’s plea of nolo contendere was made with the understanding that he was not waiving for appellate review purposes the adverse ruling of the trial court on his motion to dismiss for failure of the State to comply with the Speedy Trial Act. We have also reviewed the record for evidence that might reflect a plea bargain agreement which would have permitted us to invoke and apply to this case the provisions of Art. 44.02, supra. Our search on both counts has been fruitless. We have also reviewed the record to see if there are any jurisdictional defects in the conviction, but have found none. Our research has yet to reveal any case which has held that the denial of a speedy trial or a violation of the Speedy Trial Act constituted a jurisdictional defect. To the contrary, our research has revealed that such is non-jurisdictional. See Bond, Plea Bargaining & Guilty Pleas, Section 7.21 [d] (1978 Edition). Nor have we found any error that *405could be considered by this Court in the interest of justice.1

We find and hold' that appellant has simply failed to preserve for appellate review his ground of error that related to the trial court’s denying his motion to dismiss because of the State’s failure to comply with the provisions of the Speedy Trial Act.

The court of appeals erred in considering the issue.

The State’s petition for discretionary review is granted. The judgment of the court of appeals is reversed and the judgment of conviction affirmed.

W. C. DAVIS, TOM G. DAVIS, and CAMPBELL, JJ., concurred in result. ONION, P.J., and MILLER and ODOM JJ., dissent.

. Of course, should there be evidence that when appellant entered his plea of nolo contendere such was conditioned or qualified on his right to raise on appeal the adverse ruling of the trial judge, our decision today will not preclude, appellant from seeking relief by way of post-conviction writ of habeas corpus.