concurring.
I concur in the result reached. I do note that in passing on the sufficiency of the evidence in Cause No. 67,744 to meet the requirements of Article 1.15, V.A.C.C.P., in light of appellant’s plea of guilty the majority considered, and rightly so, the judicial confession of the appellant, freely and voluntarily given. It is interesting to observe that if the decision of the majority on the trial court’s ruling on the pre-trial motion to suppress had been otherwise, then the freely and voluntarily given judicial confes*231sion would have been ignored for all purposes. This is so because of the judicial hijinks in the majority opinion in Ex parte Morgan, 688 S.W.2d 504 (Tex.Cr.App.1985), interpreting Article 44.02, V.A.C.C.P., as amended, and overruling Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978), and Haney v. State, 588 S.W.2d 913 (Tex.Cr.App.1979).
Thus the consideration on appeal of a freely and voluntarily given judicial confession, where there has been a plea bargain agreement and an appeal from a ruling on a pre-trial motion, turns on the decision the appellate court makes on pre-trial ruling. Thus if the subject matter, the “tainted” evidence involved in the hearing on a pretrial motion to suppress evidence, is not used during the plea of guilty proceedings, but on appeal the appellate court determines the overruling of the motion to suppress was erroneous, the entire conviction is reversed. This is utter nonsense because on re-trial the same evidence could be introduced again and on appeal the conviction would be affirmed. This all follows from the overruling of Ferguson and Haney in Morgan which failed to set any guidelines for re-use of judicial confessions and stipulations following reversal on the erroneous ruling on a pre-trial motion. Hopefully this Court will soon end this foolishness or the Legislature will act.
I cannot agree with the majority’s statement in today's opinion
“Accordingly, this court has jurisdiction to consider appeals of these causes on matters which were either raised pretrial or on which the trial court gave permission to appeal. Galitz v. State, 617 S.W.2d 949 (Tex.Cr.App.1981).” (Emphasis supplied.)
To the extent that Galitz so holds, it should be overruled.
If a defendant falls within the provisions of the 1977 amendment to Article 44.02, he has no right of appeal at all without the permission of the trial court save and except the appeal from rulings on certain pre-trial matters. If an appeal from the plea itself is permitted within the discretion of the court, there is nothing to indicate any legislative intent that the appeal can be greater in nature or scope than an appeal permitted by law where the guilty plea is without a plea bargain. Thus if the court permits an appeal from the plea itself under the amendment to Article 44.02 where there is a plea bargain, it cannot enlarge upon the type of appeal to be accorded the defendant. A defendant who has already benefited from a plea bargain, and who normally would have no appeal at all, is not entitled to a greater right to appeal merely because he gains permission of the trial court. This is plain from the language of the statute. Article 44.02 was not intended to create an artificial distinction between the two forms of guilty pleas. The court cannot waive statutory or other requisites and permit an appeal the defendant would not be accorded. Galitz was wrong in interpreting Article 44.02 as allowing a defendant to appeal a specific matter (not the subject of a pre-trial motion) following a guilty plea and a plea bargain which a defendant on a plea of guilty without a plea bargain cannot appeal. It was the very purpose to reduce the number of appeals where there had been a plea bargain, not to increase them. Galitz should not continue to be cited.
I do, however, concur in the result reached by the majority in the instant case.