Wilson v. State

OPINION

ELLIS, Justice.

Appellant entered a plea of guilty before the court to the offense of possession of marihuana. Tex.Health & Safety Code Ann. § 481.121(b)(1). He was convicted and the court assessed punishment at confinement for four days in the Harris County Jail and a fine of $300.00. We affirm.

Appellant raises a single point of error, contending that the trial court erred in denying his motion to suppress evidence. We do not reach the merits of appellant’s point of error, finding that he failed to preserve error.

Appellant’s notice of appeal fails to comply with Tex.R.App.P. 40(b)(1), which provides:

Such notice shall be sufficient if it shows the desire of the defendant to appeal ... but if the judgment was rendered upon his plea of guilty or nolo contendere ..., 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 *702entry 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. (Emphasis added.)

The record in the instant case reveals that appellant’s plea of guilty was entered pursuant to a plea bargain agreement. The trial court assessed the punishment agreed to by the parties. The notice of appeal, however, fails to state either that the trial court granted permission to appeal or that the subject matter of the appeal was raised by written motion and ruled on before trial.

Failure to comply with the requirements of Rule 40(b)(1) results in a failure “to preserve any nonjurisdictional defects for ... appeal.” Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App.1990). That is, while the reviewing court acquires bare jurisdiction over the appeal by virtue of the faulty notice of appeal, the appellate court may not entertain issues that are nonjurisdictional in nature. 796 S.W.2d at 186-187. The trial court’s ruling on a motion to suppress evidence involves an alleged nonjurisdictional defect. See Christal v. State, 692 S.W.2d 656, 659 (Tex.Crim.App. [Panel Op.] 1985) (Opinion on motion for rehearing.)

We hold, therefore, that appellant failed to preserve any error relative to the trial court’s overruling of his motion to suppress evidence and we are unable to consider his first point of error on the merits.

In a response brief, appellant contends that, in the event this court is unable to reach the merits of appellant’s point of error, then his plea is rendered involuntary. That is so, appellant asserts, because his plea of guilty was explicitly conditioned on his right to appeal the denial of his motion to suppress evidence.

The contention that appellant’s plea of guilty is involuntary if this Court fails to address the merits of his motion to’ suppress, differs from the one raised in his original brief and, therefore, constitutes an additional point of error. A point of error raised for the first time in a supplemental brief is not properly presented for appellate review. Rochelle v. State, 791 S.W.2d 121, 124 (Tex.Crim.App.1990); Coleman v. State, 632 S.W.2d 616, 619 (Tex.Crim.App.1982).

We note, however, that even if we address the substance of this argument, we find it is without merit. To support his position, appellant cites two opinions from our sister courts of appeals: Collins v. State, 795 S.W.2d 777 (Tex.App. — Austin 1990, no pet.); and Lemmons v. State, 796 S.W.2d 572 (Tex.App. — San Antonio 1990, pet. granted). Both decisions held the pleas of the defendants were involuntary, relying on the Court of Criminal Appeals’ decisions in Broddus v. State, 693 S.W.2d 459 (Tex.Crim.App.1985); and Christal v. State, 692 S.W.2d 656, 658 (Tex.Crim.App. [Panel Op.] 1981). Both Broddus and Christal are inapposite to the instant situation, however. The distinguishing feature of those cases is that they involve pleas of guilty and nolo contendere where there were no plea bargain agreements. 693 S.W.2d at 461; 692 S.W.2d at 659. Because there is no right to appeal nonjuris-dictional issues where a plea of guilty or nolo contendere is entered without an agreed punishment recommendation, the pleas were rendered involuntary when the trial court encouraged the belief that appeal of such issues was in order.

The instant case presents a very different picture. Pleading guilty pursuant to a plea bargain agreement, appellant had a right at the time of entering his plea to appeal the ruling on his pretrial motion to suppress evidence. Tex.R.App.P. 40(b)(1). It is only when he did not comply with the requirements of Rule 40(b)(1) regarding the contents of his notice of appeal that appellant failed to preserve error. Referring to the predecessor to Rule 40(b)(1), Tex.Code CRIM.PROC.Ann. art. 44.02, the Court of Criminal Appeals held, “it is only when the defendant has satisfied the provisions of art. 44.02, ..., that he may complain on appeal of rulings on pretrial motions.” Dees v. State, 676 S.W.2d 403, 404 (Tex.Crim.App.1984).

*703In both Broddus and Christal the trial court actively encouraged the misapprehension on the part of the defendants that they could obtain substantive review of their pretrial motions. 693 S.W.2d at 462; 692 S.W.2d at 659. In fact, however, neither defendant was entitled to such review, since their pleas were entered without agreed punishment recommendations.

In the instant case, there was nothing to prevent substantive review of the ruling on appellant’s pretrial motion to suppress evidence at the time when he entered his plea of guilty. It would have been impossible, then, for the trial court to create a false impression appellant had such a right, since, in fact, he did have the right to appeal the trial court’s ruling on his motion to suppress. It would have required prescience to an unusual degree on the part of the trial judge for him to have foreseen that appellant’s counsel would fail to comply with Rule 40(b)(1). In the instant case it is obvious the trial court did not actively mislead appellant regarding his right to appellate review. He had a right to appeal the ruling on his pretrial motion to suppress evidence. It only remained for his counsel to properly preserve error by complying with Tex.R.App.P. 40(b)(1). We overrule appellant’s sole point of error.

Accordingly, we affirm the judgment of the trial court.